# APPENDIX I

HAZARDOUS WASTE MANAGEMENT ACT

I

# ."

# IDAHO CODE

CONTAINING THE


# GENERAL LAWS OF IDAHO· ANNOTATED

ORIGINALLY PUBLISHED BY AUTHORITY OF LAWS 1947, CHAPTER 224

REPUBLISHED BY AUTHORITY OF LAWS 1949, CHAPTER 167 AS AMENDED 

# • Compiled Under the Supervision of the Idaho Code Commission

PHILLIP M. BARBER
WILLIS 

### E. SULLIVAN JESS B. HAWLEY, JR.
COMMISSIONERS



## VOLUME SEVEN A

THE MICHIE COMPANY 

# • Law Publishers
CHARLOTTESVILLE, VIRGINIACOPYRIGHT © 1948, 1961, 1977, 1985

BY

THE MICHIE COMPANY

All rights reserved.PUBLISHER'S NOTE

Since the publication in 1977 of revised Volume 7A, many of the laws contained therein have been amended or repealed andmanynew laws have been enacted. The laws in Title 40 concerning highways and bridges were entirely repealed and replaced in 1985 and parallel reference tables have beeninsertedprecedingTitle40 which indicate where the subjectmatterof the former statutes is now codified and where the subject matter of the present statutes was formerly codified. Accordingly, this replacement volume is issued with the approval and under the direction of the Idaho Code Commission. Volume 7A contains the laws governing health and safetyandhighways andbridges.

This replacement volume contains laws enacted by the Idaho legislature through the 1985 regular session and annotations ofcases interpretingthe Idaho Code from thefollowing sources:
PacificReporter2ndSeriesthrough Volume 694, p. 1133. Federal SupplementthroughVolume 601, p. 1037. FederalReporter 2nd SeriesthroughVolume 754, p. 394. United States Supreme Court Reports,'Lawyers' Edition, 2nd Series throughVolume 83, p. 985. West's BankruptcyReporterthrough Volume 46, p. 246. Following is an explanation ofthe abbreviations ofthe Court Rules used throughouttheIdaho Code.

I.R.C.P. Idaho Rules ofCivil Procedure I.C.R. Idaho Criminal Rules M.C.R. Misdemeanor Criminal Rules I.J.R. IdahoJuvenileRules I.A.R. Idaho Appellate Rules LC.A.R. Idaho CourtAdministrativeRules I.I.R. Idaho InfractionRules I.R.E. Idaho Rules ofEvidence

: '

, "

{ 

## , J

, "

111

### ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE

Article 3, § 22 of the Idaho State Constitution provides: "No act shall take effect until sixty days from the end ofthe session at which the same shallhavebeenpassed, except in case ofemergency, which emergency shall be declared in thepreambleor in thebody ofthelaw."**.~.** Section 67-510 Idaho Code provides: "No act shall take effect untilJuly 1**;~. -~.** **~'.** of the year of the regular session or sixty (60) days from the end of the session at which the same shall have been passed, whichever date occurs last, except in case ofemergency, which emergency shall be declared in the preamble or body ofthe law.

-v**~§:** Everyjointresolution, unless a different time is prescribedtherein, takes effect from itspassage."

This table is given in orderthatthe effective date ofacts, not carrying an emergency or which do not specify an effective date, may be determined with a minimum ofdelay. Year 1921 : 1923 1925 1927 1929 1931 1931 (E. S.) 1933 1933 (E. S.) 1935 1935 (IstE. S.) 1935 (2nd E. S.) 1936 (Srd

### E. S,) 1937 1937 (E. S.) Adjournment Date March 5,1921 March 9,1923 March 5, 1925

: March 3,1927 '.

.... .. lVlarch 7, 1929 March 5, 1931 March 13, 1931

March 1, 1933 June 22, 1933 March8, 1935 March 20, 1935 .'........................................ July 10, 1935 July 31, 1936

, March 6,1937

November 30, 1938 1939 March 2, 1939 1941 March 8,1941 1943 '................................................... February 28, 1943 1944 (l.st 

### E. S.) 1944 (2nd E. S.) 1945 1946 (IstE. S.) 1946 (2nd E. S.) 1947 1949 1950 (E. S.) 1951 1952 (Lst E. S.) March 1, 1944 March4, 1944 March9, 1945

............ .......... ...... .... ........ ..... March 7, 1946 March 7,1946 March7,1947 March4, 1949 February 25, 1950 March 12, 1951 January 16, 1952

v.

vi

. ADJOURNMENT DATES

Year Adjournment Date 1953 March 6, 1953 1955 March 5, 1955 1957 March 16, 1957 1959
,.............................................. March 9, 1959 1961 March 2, 1961 1961 (IstE. S.) August4, 1961 1963 March 19, 1963 1964 (E. S.) August 1, 1964 1965

..... :.......................................................... March 18,'1965 1965 (IstE. S.) March 25, 1965 1966 (2nd E. S.) March 5, 1966 1966 (3rd E. S.) March 17, 1966 1967 March 31, 1967 1967 (1st E. S.) June 23,1967 1968 (2nd E. S.) February9, 1968 1969 March 27, 1969 1970 March 7, 1970 1971 .. ; : 'March 19,1971: 1971 (E. S.) April 8, 1971 1972 :................... March 25,1972 1973 March 13, 'r973 1974 March 30, 1974 . 1975 March 22, 1975 1976 March 19, 1976 1977 .. March21, 1977 1978 March 18, 1978' 1979 March 26, 1979 1980................................. March 31, 1980 1981 : March 27,1981 1981 (E. S.) July 21, 1981 1982 March 24,1982" 1983 April 14, 1983. 1983 (E. S.) May 11, 1983 1984 March 31, 1984 1985 March 13, 1985

# I I

, I 

## I

i i

# I I

i j I 

# I

!

# I

I



# e 299 HAZARDOUS WASTE MANAGEl\IENT 39-4402

CHAPTER 44

HAZARDOUS WASTE MANAGEMENT

SECTION. SECTION. 39-4401. Shorttitle. 39-4416. Citizen suits. 39-4402. 39·4403. Legislative findings and purposes. Definitions. 39-4417. Hazardous count. waste emergency ac39-4404. 39-4405. 39·4406. Consistencywith federal law. Rules and regulations in general. General powers and duties of di39-4417B. Hazardous waste training, emergency and monitoring account. rector. 39-4418. Local governmentnotice. 39-4407. Identification ofhazardous wastes. 39-4419. Interstate cooperation. 39-4408. Unauthorized treatment, storage, 39-4420. Employment security. "I



### "' I

!

# I

, 

## I release, or disposal ofhazard­ 39-4421. Goodsamaritanprotection. 39-4422. Severability. 39-4426. Appointment of health inspectors. 39-4427. Hazardous wastedisposal fee. 39-4428: Collection offees

- Returns. 39-4429. Books and records to be preserved ous wasteprohibited. 39-4409. Permit requirements for hazardous waste treatment storage,

or disposal facilities. 39·4410. Transportation of hazardous waste.

- Entry and inspection by 39-4411. Records - Reporting - Monitordepartmentofhealth and wel­ ing. fare. Additions andpenalties. 39·4412. Inspections

- Right ofentry. 39-4413. Enforcementprocedures. 39-4430. 39-4414. Remedies. 39·4431. Collection and enforcement. 39-4415. Violations constituting misde­ 39-4432. Distribution of hazardous waste

meanors. disposal fee revenues.

39·4401. Short title.

- This act may be known and cited as the "Hazardous Waste ManagementAct of 1983." [I.C., § 39-4401, as added by 1983, ch.154, § 1, p. 416.]

Compiler's notes. The words "this act" refer to S.L. 1983, ch, 154, § 1 which is compiled as §§ 39-4401 through 39-4422.

39-4402". Legislative findings and purposes. - (1) The legislature of theStateofIdahofinds: (a) That continuing technological progress, increases in manufacturing, and the abatement of air and water pollution have resulted in everincreasingquantities ofhazardouswaste; " (b) That the public health and safety', and the environment, are threatened when hazardous wastes are not managed in an environmentally soundmanner; (c) That the knowledge and technology necessary for alleviating adverse health, environmental and aesthetic impacts resulting from current hazardous waste management and disposal practices are generally 1 available; and (d) That the problem of proper management of hazardous waste has become a matterofgreat statewideconcern. (2) Therefore, it is hereby declared that the purposes of this act are: (a) To protect the public health and safety, the health of living organisms, and the environment from the effects of the improper, inadequate, or unsound managementofhazardouswaste;

(39-4403 HEALTH AND SAFETY 300

(b) To establish a program to track and control hazardous wastes from

;1

# . the time they are generated through transportation, treatment, storage, !

.: 1 anddisposal; and, i(
I. (c) To assure the safe and adequate management of hazardous wastes

'! :' within the state. [I.C., § 39-4402, as added by 1983, ch. 154, § 1, p. 416.] 

### ]I Compiler's notes. For words "this act," Applicability of zoning regulations to 'ii see Compiler's notes, § 39-440l. waste disposal facilities of state or local 

# II Collateral References. Validity and con­ governmentalentities. 59 A.L.R.3d 1244. struction of statutes, ordinances, or regula­ :1 tions controlling discharge of industrial
il d wastes into sewer systems. 47 A.L.R.3d 1224. i\ :I

.j :I

! 39-4403. Definitions.- As used in this chapter: :i (1) "Board" meanstheIdahoboardofhealthandwelfare. 

# !I (2) "Commercial hazardous waste facility or site" means any hazardous 

## ;1 waste facility whose primary business is thetreatment, storageor disposal, iI for a fee or other consideration, of hazardous waste generated offsite by 

## \! generators otherthanthe owner and operatorofthefacility. 11 (3) "Department" means the Idaho department of health and welfare. :1 lj (4) "Director" means the director ofthe Idaho department ofhealth and· 

# n welfare or the director's authorizedagent. 11 (5) "Disposal" means the discharge, deposit, injection, dumping, spilling, i leaking or placing of any hazardous waste into or on any land or water so \1

! that such hazardous waste or· any constituent thereof may enter the environment or be emitted into the air or discharged. into any waters, includinggroundwaters. (6) "Generator" means any person, who by virtue ofownership, management, or control, is responsible for causing or allowing to be causedthe creationof a hazardous waste. (7) "Hazardous waste" means a waste or combinationofwastes of a solid, liquid, semisolid, or contained gaseous form which, because ofits quantity, concentrationor characteristics (physical, chemical or biological) may: . (a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or . (b) ·Pose a substantial threat to human health or to the environment if improperly treated, stored, disposed of, or managed. Such wastesinclude, but are not limited to, materials which are toxic,.corrosive, ignitible, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in domestic sewage, or solid or dissolved materialsin irrigationreturnflows

or industrial discharges which are point sources subject to national pollution discharge elimination systempermits underthe Federal Water Pollution Control Act, as amended, 33 U.S.C., Section 1251 et seq., or source, special nuclear, or by-product material as defined by the Atomic EnergyAct of 1954, as amended, 42 U.S.C., Section 2011 etseq. (8) "Hazardous waste management" means the systematic control ofthe collection, source separation, storage, treatment, transportation, processing, and disposal ofhazardous wastes.

### i

J 

### I I 301 HAZARDOUS WASTE MANAGEMENT 39-4403

(9) "Hazardous waste facility or site" means any property, structure, or ancillary equipment intended or used for the transportation, treatment, storage or disposal ofhazardouswastes. (10) "Manifest" means a form used for identifyingthe quantity, composition, origin, routing, waste identification coders), and destination of hazardous waste during any transportation from the point ofgenerationto thepointoftreatment, storageor disposal. (11) "Person" means any individual, association, partnership, firm,joint stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency, or instrumentality, or any other legal entity which is recognized by law as the subjectofrights andduties. (12) "RCRA" means the Resource Conservation and Recovery Act of 1976 as amendedin 1978 and 1980.

(13) "Storage" means the containment of hazardous wastes, on a temporary basis or for a period of years, in such a manner as not to constitutedisposal ofsuchhazardouswastes. (14) "Transportation"meansthe movementofanyhazardous wasteto or from a hazardouswastefacility or site. (15) "Transporter" means any person who transports a hazardous waste to or from a hazardouswastefacility or site. (16) "Treatment" means any method, technique,or process, including neutralization, which is designed notto be an integral partof a production
process, but which is rather designed to change the physical, chemical, or biological character or composition of anyhazardous waste priorto storage

or final disposal so.as to neutralize suchwaste or so as to render suchwaste nonhazardous or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage or reduced in volume. Such
term includes any activity.or processing designed to change the- physical form or chemical composition of hazardous waste so as to render it nonhazardous. (17) "Waste" means any solid, semisolid, liquid or contained gaseous material for which no reasonable use or reuse is intended or which is intended to be discarded. [I.C., § 39-4403; as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 205, § 1, p. 502.]

Compiler's notes. The Resource Conser­ Cross ref. Inspection of hazardous waste vation and Recovery Act of 1976, referred to in subdivision (12) ofthis section, is compiled as 42 U.S.C. § 6901 et seq.

Section 2 of S.L. 1984, ch, 205 is compiled carriers, §§ 67-2929,67-2930. Sec. to sec. ref. This section is referred to in §§ 18-3905,67-2929.

as § 39-4410.

# e· 39-4404 HEALTH AND SAFETY 302

39-4404. Consistency with federal law. - The legislature intends that the state ofIdaho enact and carry out a hazardous wasteprogramthat will enable the state to assume primacy over hazardous waste control from thefederal government.

The legislature finds that the RCRA, as amended, 42**U.S.C~,** Section 6901 et seq., and regulations adopted pursuant thereto, establish complex and detailed provisions for regulation of those who generate, transport, treat, store, and dispose of hazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of all ofthe regulations whichhavebeen or will be establishedunder RCRA. However, by theprovisions ofthis chapter, thelegislaturedesiresto avoid the existence of duplicative, overlapping or conflicting state and federal regulatory systems.

Therefore, the board is directed to promulgate rules and regulations which are in substance consistent with federal regulations adopted by the administrator of the United States environmental protection agency 

### to implement RCRA. The board may not promulgate rules and regulations governing activities affected by such federal regulations until at least six (6) months after the promulgation ofsuch regulations by the environmental protection agency. The six (6) months' delay shall apply, but not be limited, to rules and regulations concerning mining waste, mineral processing waste, and all othermaterials under studyby the administrator of the environmental protection agency as required by 42 U.S.C. sections 6982(f) and 6982(p). Until such time as the board has promulgated rules and'regulations concerning mining and mineral wastes and materials under study by the administrator, those wastes and materials shall not be considered or defined as hazardous wastes underthis chapter. Farmers and ranchers who treat, store, or dispose of waste pesticides from their operations on lands owned or controlled by them shall not be required by boardrules or regulations to do anythingmore thanfollow the instructions .j on the pesticide label and triple rinse empty containers in accordance.with it the RCRA regulations of the environmental protection agency. The board maynotpromulgate anyrule or regulation thatwould impose conditions or requirements more stringent or broader in scope than the RCRA regulations of the environmental protection agency. The board may, however, promulgate procedural rules and regulations and rules and regulations specifically authorized by this chapter or other state statutes without showing that those rules and regulations are required by RCRA or the t regulations of the environmental protection agency; provided that those i I j rules and regulations shall not conflict with this section, other sections of this chapter, 'RCRA, or the rules and regulations of the environmental protection agency. Any rule or regulation promulgated by the board shall be valid until it is repealed or modified through the administrative process of section 67-5201, Idaho Code, et seq. [I.C., § 39-4404, as added by 1983, j ch. 154, § 1, p. 416.] 

### i 1 

### r: 39-4405. Rules and regulations in general.

- Pursuant to the I procedures established by the Idaho administrative procedures act, chapter .j",

## ..

303 HAZARDOUS WASTE MANAGEMENT 39-4407

52, title 67, Idaho Code, theboard shall adopt such rules andregulations as

are necessary and feasible for the management of the post generation handling, collection, transportation, treatment, storage, and disposal of hazardous wastes within the state. The rules and regulations promulgated by the board shall be a part ofthis code and shall have the force and effect of law. Such rules and regulations shall include, but not be.limited to: (1) Criteria for the determination of whether any waste or combination ofwastesis hazardousfor thepurposes ofthischapter; (2) Rules and regulations for those who generate, transport, treat, store, or dispose ofhazardouswastes; (3) Rules and regulations, consistent with those issued by the United States environmental protection agency and the United States department oftransportation, for containerization, labeling and manifesting ofhazardous wastes; (4) Rules and regulations specifying the terms and conditions under which the department shall issue, modify, suspend, revoke, or deny such permits as shallbe requiredby thischapter; (5) Lists of those wastes or combinations of wastes which are not compatible andwhich maynotbe storedor disposed oftogether; (6) Procedures and requirements for the reporting of the generation, transportation,treatment, storage or disposal ofhazardouswastes; (7) Rules and regulations establishing standards and procedures for the training of personnel at generation sites and at hazardous waste facilities 

# e. andsites. [LC., § 39-4405, as addedby 1983, ch. 154, § 1, p. 416.]

" i Sec. to sec. ref. This section is referred to in § 39·4411.

39·4406. General powers and duties of director.

- The director: (1) Shall take all actions not inconsistent with this chapter'as are necessary and feasible to enable the department to assume and continue primacy over hazardous waste management, pursuant to the RCRA as amended,42 U.S.C., Sections 6901-6987; (2) May conduct andpublish studies ofhazardous waste management in thisstate; (3) Shall develop, publish, and revise as necessary a planfor the safe and effective management of hazardous wastes within this state. Such a plan may identify those locations in the state which are not suitable for the establishment of hazardous waste treatment or disposal facilities or sites; (4) Shall exercise all powers and discharge all duties expressed in or impliedfrom theothersections ofthis chapter. [LC., § 39-4406, as added by 1983, ch. 154, § 1, p. 416.]

39-4407. Identification ofhazardous wastes.

- (1) The board shall establish criteria for determining if any waste or combination ofwastes is hazardous or nonhazardous, for the purposes of this chapter. Any waste39-4408 HEALTH AND SAFETY 304

which meets the hazardous waste criteria established by the board shall be considered a hazardous waste regardless ofwhether or not it is included by theboard in a list ofhazardous wastes. (2) The board may adopt, and amend from time to time a list or lists of hazardous wastes. The board may, with public notice but without the necessity of a public hearing, list as hazardous any waste or combination of
wastes determined to be hazardous by.the United States environmental protection agency. (I.C., § 39-4407, as added by 1983, ch. 154, § 1, p. 416.]

Sec. to sec. ref. This section is referred to in § 39-4411.

39-4408. Unauthorized treatment, storage, release, or disposal of hazardous waste prohibited.- No person shall treat or store hazardous waste, nor shall any person discharge, incinerate, release, spill, place, or dispose any hazardous waste in such a manner that the waste, or any constituentthereof, may enterthe environment,unless the departmenthas issued said person a permit or a variance as required for the specific activity involved or exempted the activityfrom permit requirements. [I.C., § 39-4408, as added by 1983, ch. 154, § 1, p. 416.J .

39-4409.

.Permit requirements for hazardous waste treatment storage, or disposal facilities. - (1) No person shall construct, operate, or modify a hazardous waste treatment, storage, or disposal facility or site without a permitfrom the department. The owneror operatorofthefacility

or siteratherthan thebuildershall be responsible for obtainingthepermit. The board may exempt classes or categories ofhazardous waste treatment, storage, or disposal facilities from the permitrequirement ifthe exemption is in the public interest and consistent with RCRA requirements. The fact that a class or category of such facilities is not required to obtain a federal permit shall be persuasive evidence that an exemption is in the public interest. Interim status granted by RCRA or a permit issuedby theUnited States environmental protection agency prior to the date that the state programis authorizedby the administratorofthat agency shallbe adopted by the department as a state granted interim status or as 

## a state granted permituntilthe departmentissues a new statepermit. (2) The board shall promulgate rules and regulations establishing the terms and conditions for issuing permits to the described facilities and sites. The rules and regulations shall provide for, but not be limited 

### to: (a) Standards and procedures for the safe operation and maintenance of thefacilities and sites; (b) Education and training qualifications of personnel at the facilities and sites; (c) Contractual commitment or consent to each facility or site from all holders ofinterests in the real propertycommitted to that facility or site; (d) Monetary assurances in such form and amount as are necessary for . effective management, maintenance, and monitoringofthe facilities and sitesduring and afteroperation;

.1305 HAZARDOUS WASTE MANAGEMENT 39-4410

(e) Liability insurance in such form and amount as is necessary to compensate for potential damages caused by the facilities and sites; provided, that liability insurance shall not be required in the event that liability insurance is not required by the federal regulations adopted pursuantto theRCRA; 

### CO Emergency equipment and emergency response plans appropriate to thefacilities and sites; (g) Public participation In the permitting process consistent with 42 U.S.C. section 6974(b). (3) Permits shallbe issued for a period not to exceed ten (10)years or the maximum period allowed under RCRA, whichever is greater: Permits issued

### to hazardous wastefacilities and sitesby the departmentpriorto the effective date [July 1, 1983] of this chapter shall be reissued to conform with the provisions of this chapter and the rules and regulations promulgatedunderthis chapter. (4) Any permit issued under this section maybe revoked by the director, pursuant 

### to the provisions ofsection 39-4413, Idaho Code, ifthe permitted party fails to comply with the terms and conditions of the permit, this chapter,or therules andregulationspromulgatedunderthischapter. (5) The department may issue a variance from the requirements ofthe rules andregulationspromulgated underthis section, if, in thejudgmentof the director, application of the requirements would cause unreasonable hardship and the grantingof a variance would not be harmful to the public interest or inconsistent with RCRA requirements. A variance shall not exceed one (1) year in duration and may berenewed or extended only after the department provides public notice and an opportunity for public
comment. [I.C., § 39-4409, as added by 1983, ch. 154, § 1, p. 416.]

Sec. to sec. ref. This section is referred to in §§ 39-4426, 39·4427. 

### i 

# I 39·4410. Transportation ofhazardous waste.- (1) The board shall promulgate hazardous waste transportation rules and regulations to control the intrastate and interstate transportation of federally regulated types and quantities ofhazardous waste. The rules and regulations shall be consistent with the rules and regulations issued by the United States department oftransportation and the United States environmentalprotection agency. The rules and regulations shall also be consistent with the rules and regulations of the Idaho public utilities commission unless such .:

d consistency would impair the primacy or the effectiveness of the state's !

...hazardous waste management program. In that case the board shall confer "!

with the commission and endeavor to develop mutually acceptable trans-' portation rules and regulations. If mutually acceptable rules and regulations cannot be developed, the board shall promulgate transportation rules and regulations that minimize conflict with the commission's rules and regulations while assuring the primary authority and effectiveness of the306 39-4410 HEALTH AND SAFETY

state's hazardous waste management program. Rules and regulations so promulgated by the board shall prevail over conflicting rules and regulations ofthecommission. (2) The hazardous wastetransportationrules and regulations shall apply 

### to all transporters offederally regulated types and quantities ofhazardous waste generated either by themselves or by others. These rules and regulations shall apply to any movement ofhazardous wastes 

### to or from a hazardous wastefacility or site. (3) The hazardous waste transportation rules and regulations shall provide for butnot be limitedto: (a) Standards for the containerization and labeling ofhazardous wastes; (b) Standards for the handling and placarding of hazardous waste shipments; (c) Ahazardouswaste trackingsystem requiringthat: (i) All transporters of federal regulated types and quantities of hazardous waste obtain an identification number from the department, theenvironmental protection agency, or anotherapproved stateprogram, before acceptinghazardous wastefor transport; (ii) All shipments of federally regulated types and quantities of hazardous waste to be. shipped off site or received from off site be accompanied by a manifest or similar form describing the hazardous waste beingshipped anditsdestination; (iii) A copy of each manifest or similar form be returned to the generatorand/or originatorofthe shipment and a copy be retainedby the transporterfor a minimumofthree (3)years. (4) The hazardous waste transportation rules and regulations may provide for special routingofhazardous waste shipments in this statewhen necessary to protect the public health, the public safety, or the environment. (5) The owner or operator of a motor vehicle or trailer transporting on the highways or public roads ofthis state hazardous waste required 

### to be manifested shall be required to purchase a hazardous waste trip permit. The permit shall be issued by the Idaho transportation department upon the payment of a fee of tweiltydollars ($20.00) for each single trip movement or transit of the vehicle or trailer between the point of origin and destination as set forth in the permit. No permit shall be required for transportation of five hundred (500) pounds or less ofhazardous waste by a generatortwenty (20) miles or less to an accumulation site from which the hazardous waste will ultimately be transported for final disposal. The permitmaybe in theform of a single trippermitissuedpursuant

### to section 49-125A, Idaho Code, but shall not be in lieu of any other permits or registrationrequired pursuantto title 49, Idaho Code. All moneys collected 'pursuant 

### to this section by the Idaho transportation department shall be remitted 

### to the state treasurerfor deposit in the hazardous waste training, emergency and monitoring account created in section 39-4417B, Idaho Code. An amount of money equal 

### to the actual and reasonable cost of issuing the hazardous waste trip permit and collecting the moneys pursuant thereto as determined by the Idaho transportation department307 HAZARDOUS WASTE MANAGEMENT 39-4411

and certified quarterly by the state auditor, shall be transferred l'rom the
accountto theIdahotransportationdepartment. (6) No commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, shall receive hazardous waste from a
motor vehicle or trailer unless the waste is accompanied by a proper manifest and the transporter has obtained a special trip permit from the Idaho transportation department as provided in subsection (5). If an improperly documented shipment ofhazardous waste arrives at a permitted commercial hazardous waste facility or site, the owner or operator of the facility or site shall immediately notify the Idaho transportation department and the Idaho department of health and welfare. [I.C., § 39-4410, as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 205, § 2, p. 502.]

Compiler's notes. Sections 1 and 3 of S.L. Sec. to sec. ref. This section is referred to 1984, ch. 205 are compiled as §§ 39-4403 and in §§ 39-4417B,39.4426. 39-4417B, respectively.**-~** I Crossref. Motor CarrierAct, §§ 61-801­

· i 61-818. · I

c 

### i 39-4411. Records

- Reporting

- Monitoring.

- (1) Pursuantto the provisions ofsection 39-4405, Idaho Code, theboard shall adopt, and amend

as necessary, such rules and regulations relatingto records, reporting, and monitoring as maybe needed to achieve thepurposes ofthis chapter. These rules may include, but shall not be limited to, prescribing procedures and requirementsfor: (a) The establishment, maintenance, and format ofrecords and reports; 

# :I (b) The submittalofrecords andreports;

I (c) The taking of samples and the performing of tests and of analyses; (d) The use ofapproved monitoringmethods andtechniques; (e) The installation, calibration, use, and maintenance of monitoring equipment; and

. (f) Theprovisionofrelevantinformationto the department. (2) Sixty (60) days after promulgation of the criteria and lists specified under section 39-4407, Idaho Code, and the niles and regulations required under section 39-4405, Idaho Code, and subsection (1) of this section, the generation, transportation, treatment, storage, or disposal of a hazardous waste in this state by any person without reporting such activity to the department as requiredby theregulations issued pursuantto subsection (1) ofthis section shallbe unlawful. (3) Information obtained by the department or by agents, contractors, or' other representatives of the department, under the provisions of this

· I section and under section 39-4412, Idaho Code, shall be available to the


# ., public, unless the director certifies such information must be kept confidential. The director may make such certification upon a showing, to the satisfaction of the director, that the information, or parts thereof, if made public, would divulge methods, processes, or activities constituting trade secrets. Nothing in this subsection shall be construed as limiting the39-4412 HEALTH AND SAFETY 308

disclosure of information by the department to any officer, employee, or authorized representative ofthe state or the United States, as necessary to carry out the provisions of 

### this chapter or the provisions of RCRA. The provisions of this section shall not limit the department's authority to release confidential information during an emergency involving hazardous waste, if the director 

### determines that release of the information is ;1 il necessaryto safeguardthepublicinterest.

iI II (4) Each 'generator shall, at the discretion ofthe director, no later than 

## H thirty (30) days after the end of each calendar quarter submit a written reportto the departmentincludingthefollowing information: 

# II (a) The types andquantitiesofhazardous wastesgenerated; 

# !I (b) The types and quantities of such wastes shipped for treatment and

I disposal by landfillingor othermeans of disposal; (c) The types and quantities ofsuch wastes remaining in storage at the endofthereportingperiod; (d) Whether such wastes are destined for disposal or treatment in this
state or whether such wastes are destined for disposal or treatment outside this state. (5) The operator of each hazardous waste disposal facility or site in the
state shall, no later than thirty (30) days after the end of each calendar quarter, submit a written report to the department providing information

on the types and quantities of wastes received which were generated in Idaho, and information on the types and quantities of wastes received which were generatedinotherstates. (6) Prior to December 31 of each year the department shall submit a report to the governor and the legislature detailing the types and quantities of hazardous wastes generated in this state, the types and quantities ofsuch wastes shipped for treatment and disposal by landfilling

or other means of disposal, the types and quantities of such wastes remainingin storage atthe end ofthemost recent reportingperiod and the types and quantities of hazardous waste generated outside this state and shipped into this statefor storage or-disposal. [I.C., § 39-4411, as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 258, § 1, p. 618.]

Sec. to sec. ref. This section is referred to in § 39-4429.

39-4412. Inspections

- Right of entry. - (1) All inspections and searches conducted under the authority ofthis chapter shall be performed in conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution of the United States and article I, section 17, of the constitution of the state of Idaho. The state shall not, under the authority granted by this chapter,

:, conduct warrantless administrative searches of private property in the 

## :J " absence of either consent from the property owner or occupier or exigent :.J circumstances such as a publichealthor environmentalemergency. 

### 'j
! I



### -

.... . -.. 

### . .".

, . ,

. .

. . .309 HAZARDOUS WASTE**MANAGE~IENT** 39-4413

(2) For the purposes of developing or enforcing any provision of this chapter or any rule or regulation authorized by this chapter, any duly authorized state employee or representative may, upon presentation of appropriate credentials, atanyreasonable time:

(a) Enter upon any private or public property where hazardous wastes

are or have been generated, transported, treated, stored, or disposed of to inspect and to secure samples of such wastes, their containers, and their labels; (b) Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other

means ofconveyance where hazardous wastes are or havebeencontained to inspect and to secure samples of such wastes, their containers, and theirlabels; (c) Enter any private or public property, or means ofconveyance, where records, reports, information or test results relating to the generation, transportation, treatment, storage, or disposal ofhazardous wastes exist to inspectand copy suchdocuments. (3) Upon request by an authorized agent of a property owner or facility operator, the department shall provide the property owner or facility operator with a receipt for samples taken and a copy of sample analysis. Duplicate samples shall similarly be provided upon request ifthe request­ ing party agrees to have the samples analyzed and to share the. results of the analysiswiththedepartment. (4) The right ofentry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability ofthe facility owner or operator. The right of entry of a duly authorized state or health district employee shall not be subject to any confidentiality requirements other than those specified in section 39-4411(3), Idaho Code. The right of entry of a private contractor working in a representative capacity for the department may, however, be made subject to additional confidentiality requirements so long as those requirements do notinterfere unreasonably with the development of information by the department or the transmission of information from the contractor to the department or theUnited Statesenvironmentalprotection agency. 

### t· (5) Any magistrate or district court judge is authorized to issue an

.administrative search warrant upon a request from the director describing

r reasonable cause for issuance of the warrant or the existence of a L reasonable program of inspection. [I.C., § 39-4412, as added by 1983, ch. 154, § 1, p. 416.] 

# Ii

39-4413. Enforcement procedures.

- Whenever the director deter­ 

## Fi

.**;;~** minesthat anyperson is in violation ofanyprovision ofthis chapteror any permit, standard, regulation, condition, requirement, compliance agree

# I

ment or order issued or promulgated pursuant to this chapter, the dirctor maycommence one or more ofthefollowing:**}~.** : !;,', (1) ADMINISTRATIVE ACTIONS.

, (a) DepartmentalNegotiated Compliance Proceedings.

1 1. Notice. The director may commence a departmental enforcement

, fo· action by giving a person believed to be in violation of the law a 

## t;

!

### j I 

# I

39-4413 HEALTH AND SAFETY 310

written notice of violation. The notice shall state with reasonable specificity the nature of the problem and likely actions which the recipient should take to remedy the alleged violation. The notice shall also state that a civil penalty could be imposed against the recipient if the violation is not remedied within thirty (30) days. The notice shall inform the person to whom it is directed of an opportunity to confer with the director concerning the alleged violation. The notice may require a writtenresponsewithinfifteen (15) days. 2. Scheduling Compliance Conference. If a recipient of a notice of violation contacts the department within fifteen (15) days ofthe time the recipient received the notice, the recipient shall be entitled to a compliance conference. The conference shall be held withintwenty (20) days ofthe date the notice was deliveredto therecipient, unless a later date is agreed to. The conference shall be held during normal working hours at the local field office ofthe department's division of environment located closest to the recipient's place ofbusiness or at any other date, time and location mutually agreeable to the recipient and the department. 3. ·Compliance Conference. Thecompliance conference shallprovide an opportunity for a recipient of a notice of violation to explain the circumstances of the alleged violation and, where appropriate, to present a proposal for future compliance. If the recipient and the director agree on a plan to bring the recipient into compliance, they may enter into a voluntary compliance agreement formalizing their understanding. The compliance agreement may include provisions for the payment of state costs associated with the alleged violation and monetary assessments in lieu of civil penalties. All funds secured by a compliance agreement shall be paid into the hazardous waste emer­ 'gency accountcreatedby section 39-4417, Idaho Code. 4. Effect of Compliance Agreement. A compliance agreement shall be effective immediately upon its being signed. Ifa party does not comply with the terms ofthe compliance agreementthe director may seek and obtain in any appropriate district court specific performance of the

. agreement and such other reliefauthorized by section 39-4414, Idaho

Code, as the court considers to be just and reasonable. under the ! circumstances. 

# , (b) PermitSuspension or Revocation Proceedings. 1. Grounds. The director may revoke or temporarily suspend the permit of any hazardous waste facility or site if the permitted party .fails to meet the requirements of a compliance agreement or if the permittedpartycommits a violationofthelaw or a permitwhich: (i) Creates or hascreated a substantial threatto thepublic health or to the environment; or (ii) Is repetitious of prior violations of the same or different provisions ofthelaw; or (iii) Is allowed to continue or is not corrected within thirty (30) days of a notice ofviolation. 

# I 

# I311 HAZARDOUS WASTE MANAGEMENT 39-4413

A violation that is shown to have occurred as the result of an unforeseeable act of God despite a permitted party's reasonable efforts
to comply with all applicable legal requirements shall not be grounds for a suspension or revocation. 2. Notice ofHearing. The directormay commence a permit suspension

or revocation action by giving a permitted party a written notice of 

# .1 intent to suspend or revoke. The notice shall inform the permitted partyoffacts or conduct which warrant suspension or revocation ofthe permit. The notice, hearing, and record requirements for contested

cases contained in the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and subsection (1)(c) ofthis section shall apply to proceedings initiated under this subsection. Revocation or suspension of a permit shall become final fifteen (15) days after delivery of the notice of intent to revoke or suspend unless the permitted party requests a hearing. 3. AdministrativeHearingProvisions. (i) Upon a timely request by a permit holder for a hearingto review

i the director's action under subsection (l)(b) of this section, the director shall promptly conduct a hearing open to the public. The



## .,**~,** contested case provisions of the Idaho administrative procedure act



### . 

### • , 

## -s shall applyto allhearings conducted underthis subsection

. .t

., (ii) The director shall have the authorityto request from the district 

# 1

-f ¥ court in and for Ada county or any other appropriate district court the issuance of an order in the nature of a subpoena compelling the



### .. , 

# J

_.!. " attendance and testimony ofwitnesses and theproduction before the

'­**~:)** 

# 1 director of papers, books, drawings, documents, test results, and other evidence relevant to a permit suspension or revocation**·~t·** ..i 

# ....

, investigationor adjudication

. "J -i- (iii) After the hearing, the director shall issue a written opinion ,j 

### "t J -1 '4-' setting forth findings of fact,conclusions of law and an order. An

.···1· 

## f :.", aggrieved person subject to the director's order may seek its review

as a final order in a district court as provided by the Idaho administrative procedure act. District court review of the director's decision shall be limited to the record developed before the director: (2) CIVIL ENFORCEMENT ACTION. The director may commence and prosecute in district court a civil enforcement action against any person who is alleged to have violated this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order which has become effective pursuant to this chapter. Such actions may be for appropriate relief or remedies specified in this chapter or any other applicable law. The director shall notbe required to initiateor prosecute an administrative action before commencing and prosecuting a civil action. (3) LIMITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF THIS CHAPTER. No civil or administrative proceeding may be brought to

recover for a violation ofthis chapter or any permit, standard, regulation, condition, requirement or order issued or promulgated pursuant to this chapter more than two (2) years after the director had knowledge or ought39-4414 HEALTH AND SAFETY 312
reasonably to have had knowledge of the violation. [I.C., § 39-4413, as added by 1983, ch. 154, § 1, p. 416.]

Sec. to sec. ref. This section is referred to in §§ 39-4409,39-4429.

39-4414. Remedies. - The remedies specified in this section are cumulative andnonexclusive. (1) MONETARYPENALTIES. (a) Any person who makes a false statement or representation in any application, label, manifest, record, report, permit or other document filed, maintained, or used for the purpose of complying with the provisions ofthis chapter shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each separate violation or for each day of a continuingviolation. (b) Any person who violates this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each separate violation or for eachdayof a continuingviolation. (c) The imposition or computation of monetary penalties may take into
account the seriousness ofthe violation and good faith efforts to comply withthelaw. (2) ASSESSMENT OF COSTS. Any person who violates this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or orderissuedor promulgated pursuantto this chaptermaybe assessed for:

(a) The state's costs for any nonroutine investigations, inspections, monitoring, or surveys which leadto evidence ofthe violation; (b) The state's costs, including the reasonable value·of attorneys' services, for preparingandlitigatingthe case; (c) The state's costs for mitigating, removing, correcting or terminating adverse effects upon soil, air, or water quality resulting from the violation; (d) The state's costs for impounding, storing, and disposing of contaminatedproperty; (e) Compensation for damages to publicly held resources including but
not limited to, land, water, recreational uses, wildlife, fish and aquatic life to restore theresource to itshighestprevious use; 

### <0 Compensation for damages to privately held resources including, but not limited to, livestock, land, water, or other personal property, and compensation for court costs allowed by statute, reasonable attorney's fees for trial preparation and trial of the case, and all other reasonable costs oftrialpreparation andtrial ofthe case; (g) Compensation for damages to personal health and compensation for court costs allowed by statute, reasonable attorney's fees for trial preparation and trial of the case, and all other reasonable costs oftrial preparation andtrial ofthe case;

# .. ',' > •..•.•...••.... .' '. •.

.... .•...•

..,': '..' ;

8 I 

### ! 

# I 313 HAZARDOUS WASTE MANAGEMENT 39-4416

(h) The imposition or computation of costs may take into account the seriousness ofthe violation and goodfaith efforts to comply with the law. (3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF. (a) Any person who violates any provision ofthis chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or orderissued or promulgated pursuantto this chapter shall be subject to a 

# ! permanent or temporary injunction, restraining order, or other relief deemed appropriate. Upon a showing to the court that a violation is causing an imminent hazard to the public health, the public safety, or to the environment, the departmentneed not allege or prove at any stage of the proceeding that long term irreparable damage will occur should the injunction or ordernot be issued or thattheremedy at lawis inadequate. (b) A receiver may be appointed to oversee or operate any hazardous waste facility or site which is established'or operated in violation ofthis chapter or any standard, regulation, condition, requirement, compliance agreement, or orderissued or promulgatedpursuantto this chapter. (4) PAYMENT TO HAZARDOUS WASTE EMERGENCY ACCOUNT. 

# I Moneys recovered by the department pursuant to subsections (1), (2), and (3) of this section and any moneys paid to settle any enforcement proceeding instituted under section 39-4413, Idaho Code, shall be paid into 

# I I the hazardous waste emergency account created by section 39-4417, Idaho Code. [I.C., § 39-4414, as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 157, § 1,p. 383.] 

# I 39-4415. Violations constituting misdemeanors.

- (1) Any person who knowingly makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or usedfor the purpose ofcomplying with the provisions ofthis chaptershall be guilty of a misdemeanor and subject to a fine of not more than ten thousand dollars ($10,000) or.to imprisonment not to exceed one (1) year, or to both, for each separate violation or for each day ofa continuingviolation.

.j (2) Any person who knowingly violates any provision of this chapter or 

# I any vpermit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall

. be guilty of a misdemeanor and subject to a fine of not more than ten thousand dollars ($10,000) or to imprisonmentnot to exceed one (1) year, or to both, for each separate violation or for each day of a continuingviolation. (3) An action may be commenced and prosecuted by the attorney general. The director shall not be required to initiate or prosecute an administrative or civil action before the attorney general may commence

. andprosecute a criminal action. [I.C., § 39·4415, as added by 1983, ch, 154,

§ 1, p. 416; am. 1984, ch. 54, § 1, p. 94.]

39-4416. Citizen suits.

- (1) Except as provided in subsection (2) of this section, any person who has been injured or damaged by an alleged violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter, may commence, 39-4417 HEALTH AND SAFETY 

### , 314 .J 

### :1 1 a civil action on that person's own behalf against any person alleged to j have committed the violation. A person commencing an action under this 

### .j section shall be required to file a bond or equivalent security in an amount I 

### , notless than one thousanddollars ($1,000). (2) No action may be commenced under subsection (1) ofthis section if the department has commenced and is diligently prosecuting an administrative, civil, or criminal action to require compliance with the law. Further, no action may be commenced under subsection (1) ofthis section unless' the plaintiffhas given the department sixty (60) days' notice and substantial evidence of the violation upon which the citizens' action is based. However, ifthe department commences an action in a court ofthe
state of Idaho, any interested person may intervene as provided in rule 24(a) oftheIdaho Rules ofCivil Procedure. (3) In any action under this section, the department may intervene as a matterofright. (4) When issuing any final order in any action brought pursuant to this section, the court may award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing party, whenever the
court determines such an award is appropriate, except that the state of Idaho shall not be required to pay such costs in any citizen suit where the statehasbecome a party. (5) Nothing in this section shall restrict any right which a person, or class of persons, may have under any other statute or thecoinmon law. [I.C., § 39-4416, as added by 1983, ch. 154, § 1, p. 416.]

39-4417. Hazardous waste emergency account. - (1) There is hereby created an account in the agency asset fund in the state treasuryto be designatedthehazardous wasteemergencyaccount. (2) The account shall consist of moneys appropriated to the account by' the legislature, moneys allotted to the account as a result ofdepartmental compliance proceedings, moneys allotted to the account in a court ordered award or judgment, moneys allotted to the account in a court approved settlement, andmoneys contributed

### to the accountfrom othersources. (3) Moneys in the account may be used by the director in the case of a hazardous waste emergency to pay the necessary costs of preventing, neutralizing, or mitigating any threat to the public health or safety, or to theenvironmentcausedby thatemergency. (4) The boardmaypromulgate regulations for the withdrawal and use of funds from the account as specified in subsection (3) ofthis section. (5) All moneys placed in the account are hereby perpetually appropriated 

### to the department for the purposes described in subsection (3) ofthis section. All expenditures from the account shall be paid out in warrants drawnby the stateauditorupon presentationoftheproper vouchers. (6) Pending use, surplus moneys in the account shall be invested by the
state treasurer in the same manner as provided under section 67-1210, Idaho Code. Interest earned on the investments shall be returned to the account. [I.C., § 39-4417, as addedby 1983, ch. 154, § I, p. 416.]315 HAZARDOUS WASTE MANAGEMENT 39-4419

Sec. to sec. ref. This section is referred to in §§ 39-4413 and 39-4414.

39·4417B. Hazardous waste training, emergency and monitoring
account. - (1)There is hereby created an account in the dedicated fund in the state treasury to be designated the hazardous waste training, emergency andmonitoringaccount. (2) The account shallconsistof: (a) Moneys appropriatedto the account; . (b) Moneys as provided in sections 39-4410 and 39-4432, Idaho Code;

(c) Donations, gifts andgrantsfrom any source; and (d) Any othermoneys whichmayhereafterbe providedby law. (3) Moneys in the account may be appropriated for any or all of the following purposes: (a) Acquisition ofproperty and equipment by the department ofhealth and welfare to analyze, monitor, contain, collect or dispose ofhazardous wastes; (b) Employment of or contracting with necessary personnel to analyze, monitor, contain, collect or dispose ofhazardouswastes; or (c) Employment ofindividuals or contracting with individuals or corporations to respond throughout the state to health and environmental problems which may be causedby hazardous waste emergenciesor spills, improperly packaged or handled hazardous waste or the alleviation of damages to the people and environment of the state of Idaho caused by such emergenciesor spills. (d) Taking removal or remedial action relating to hazardous wastes which the department deems necessary to prevent, minimize or mitigate damage to the public health and welfare or the environment. [I.C., § 39-4417B, as addedby 1984, ch. 205, § 3, p. 502.]

Compiler's notes. Sections 2 and 4 of S.L. Sec. to sec. ref. This section is referred to 1984, ch. 205 are compiled as §§ 39-4410 and in §§ 39-4410,39-4432. 39-4426, respectively.

39-4418. Local government notice. - A permit for a new hazardous waste land disposal facility or site shall not be issued until the department has given ninety (90) days' notice to the board of county commissioners of the county in which the proposed facility or site is to be located. [I.C., § 39-4418, as addedby 1983, ch. 154, § 1, p. 416.]

39-4419. Interstate cooperation.- The director shall have thepower and the duty to encourage cooperative activities between the department and other states for the improved managementofhazardous wastes, and so far as is practical, to provide for uniform state regulations and for interstate agreements relating to hazardous waste management. The state may enter into such agreements with other states to accomplish the purposes as set out in this chapter. [I.C., § 39-4419, as added by 1983, ch. 154, § 1, p. 416.]

# " '?: : .•.•

. ..'

.'.

..••.

. .' "

, 39-4420 HEALTH AND SAFETY 316

39-4420. Employment security. - (1) No employee of a hazardous
waste generator, transporter or treatment, storage, or disposal facility or site shall be dismissed, suspended, or otherwise discriminated against because the employment testifies, provides information or otherwise assists in the enforcementor administration oftheprovisions ofthis chapter. (2) Any employerwho knowingly violates theprovisions ofsubsection (1) of this section shall be liable for damages, costs and attorneys' fees, in addition to any other liabilty for relief authorized by this chapter, by any other statute, or by the common law. [I.C, § 39-4420, as added by 1983, ch. 154, § 1, p. 416.]

39-4421. Good samaritan protection.

- (1) Notwithstanding any provision of law to the contrary, no person who provides assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened leakage, seepage, or other release of hazardous waste, or in preventing, cleaningup, or disposing of or in attempting to prevent, clean up or dispose ofany such leakage, seepage or otherrelease, shall be subject to civil liabilitiesor penaltiesofanytype. (2) The immunities provided in subsection (1) ofthis section above shall
notapplyto anyperson: (a) Whose act or omission caused in whole or in part such actual or threatenedleakage, seepage or otherrelease andwho would otherwisebe liabletherefor; or (b) Who receives compensation other than reimbursement for out-ofpocketexpenses for services in renderingsuch assistanceor advice. (3) Nothing in section (1) above shall be construed to limit or otherwise affect the liability of any person for damages resulting from such person's gross negligence, or from such person's reckless, wanton, or intentional misconduct. [I.C., § 39-4421, as addedby 1983, ch. 154, § 1, p. 416.]

39-4422. Severability.

- Theprovisions ofthis act areherebydeclared


### to be severable and if any provision of this act or the application of such provision to anyperson or circumstance is declared invalid for any reason, such declaration shall not affect the validity ofremaining portions ofthis. act. [I.C., § 39-4422, as added by 1983, ch. 154, § 1, p. 416.]

Compiler's notes. For words "this act" see Compiler's notes, § 39-4401.

39-4426. Appointmentofhealthinspectors.

- (1)The departmentof health and welfare shall assign a sufficient number of employees and equipment to inspect hazardous waste facilities or sites permitted under section 39-4409, Idaho Code, and located in Idaho where disposal of hazardous waste occurs for the purpose of assuring the protection of the health and safety of the public by monitoring the receipt and handling of hazardous wastes which have been transported by common carrier.

# ..

,

## ,./

.. '

.,

;- .'

.. ?-.·

..

# ·~.··f

or; • 317 HAZARDOUS WASTE MANAGEMENT 39-4428

(2) The employees ofthe department ofhealth and welfare designated in subsection (1) of this section shall be agents of the Idaho' transportation department andthe public utilities commissionfor thepurpose ofcollecting regulatory and registration fees pursuant to sections 61-811 and 61-812, Idaho Code, and for collecting fees and permits pursuant to chapter 1, title 49, Idaho Code, which fees have not otherwise been lawfully paid by transporters to the public utilities commission, the Idaho transportation department or a county assessor in this state and for issuing hazardous
waste trip permits pursuant to section 39-4410, Idaho Code. All moneys collected by the department's employees as agents ofthe Idaho transportation department and the public utilities commission shall be remitted to the state treasurer for deposit in the proper account as provided by law. (3) All employees of the department designated pursuant to subsection (1) ofthis section shall alert proper authorities or peace officers regarding violations pursuant to this chapter, violations pursuant to title 61, Idaho Code, and violations pursuant to title 49, Idaho Code, and violations to any rules and regulations issued pursuant to any of the aforementioned code sections.

All actions.broughtfor violations oftheprovisions ofthis chapteror rules andregulationspromulgatedpursuantthereto shallbe brought as provided for in this chapter. All actions brought for violations of the provisions of title 61, Idaho Code, or oftitle 49, Idaho Code, shall be brought as provided in those titles. [I.C., § 39-4426, as added by 1984, ch. 205, § 4, p. 502.]

Compiler's notes. Section 3 of S.L. 1984, ch. 205 is compiled as § 39-4417B.

39-4427. Hazardous waste disposal fee. - On and afterJuly 1,1984, there is imposed on the owner or operator of every commercial hazardous
waste disposal facility or site permitted under section 39-4409, Idaho Code, a fee oftwenty dollars ($20.00) perton, or fraction thereof, on all materials disposed ofatthefacility or site. [I.C., § 39-4427, as addedby 1984, ch. 205, § 5, p. 502.]

Sec. to sec. ref. This section is referred to in § 39-4429.

39-4428. Collection of fees

- Returns. - The fees imposed under section 39-4427, Idaho Code, shall be due and payable in monthly installments by the owner, agent, employee, or operator of such hazardous wastefacility or site andremittance shallbe made to the Idaho department of health and welfare on or before the fifteenth day of the month next succeeding the end of the monthly period in which the fee accrued. The
owner, operator or designated employee or agent of the hazardous waste facility or site, on or before thefifteenth day ofthe month, shall make out a return, upon such forms setting forth such information as the department mayrequire, showingthe amount ofthe fee for which the owneror operator39-4429 HEALTH AND SAFETY 318

ofthe hazardous waste facility or site is liable for the preceding monthly period, and shall sign and transmit the same to the department, together with a remittancefor such amountin the form required. (2) The department may relieve any person or class ofpersons from the obligation of filing monthly returns and may require the return to cover other reporting periods, but in no event shall returns be filed for a period greater than three (3) months. [I.C., § 39-4428, as added by 1984, ch. 205, § 6, p. 502.]

39-4429. Books and records to be preserved

- Entry and inspection by department of health and welfare.

- Every person or entity subject to the imposition of the fees specified in section 39-4427, Idaho Code, shall keep complete and accuraterecords, includingitemizedinvoices and manifests for federally regulated types and quantities of hazardous
waste ultimately disposed ofat a hazardous waste facility or site in Idaho. All books, documents and papers, computer tapes, discs, and other records required to be keptby this section shall be preserved for a period ofatleast five (5) years from the date of the records or the date of the entries appearing in the records, unless the department in writing, authorized

.their destruction or disposal at an earlier date. For purposes ofthis act, at any time during usual business hours, the department or duly authorized agents or employees, may enter any place of business of the owner or operator of a hazardous waste facility or site where hazardous wastes are disposed and inspect the premises, the records required to be kept under this chapter, and the hazardous wastes or other chemicals contained therein, to determine whether or not all the provisions ofsections 39-4427 and 39-4428, Idaho Code, are being fully complied with. Trade secret information obtainedby the departmentundertheprovisions ofthis section shall be treated in thesame manner as such information obtained under section 39-4411, Idaho Code. If the department, or any of its authorized agents or employees is unreasonably denied free access or is unreasonably hindered or interfered with in making the examination of a hazardous waste facility or site, that hindrance or interference shall constitute grounds for suspension or revocation of the facility or site's permit by the director of the department of health and welfare under subsection (b) of section 39-4413, Idaho Code. [I.C., § 39-4429, as added by 1984, ch. 205, § 7, p. 502.]

39-4430. Additions and penalties. - The additions, penalties, and requirements provided by the Idaho income tax act, sections 63-3046, 63-3075, 63-3076 and 63-3077, Idaho Code, as they now exist or as they may be subsequently amended, shall apply in the same manner and to the

same extent to this act as to the Idaho income tax act and shall cover such additions, penalties and requirements and shall, for this purpose, be described and be for acts, omissions, delinquencies, and requirements underthis chapter. [I.C., § 39-4430, as added by 1984, ch. 205, § 8, p. 502.] I .! 

## i j 

# I i .j



# .



# I 1

"

o'-"



# . , t· HAZARDOUS WASTE MANAGEMENT 39-4432 319

39-4431. Collection and enforcement. - (1) The collection and enforcement procedures available to the Idaho state tax commission provided by the Idaho income tax act, sections 63-3030A, 63-3038, 63·3039, 63-3040, 63-3042 through 63-3045A, 63-3047 through 63-3065A, 63-3068, 63-3070, 63·3071, 63·3072, 63-3073 and 63-3078, Idaho Code, as they now existor as they may subsequentlybe amended, shall apply andbe available
to the department of health and welfare for the enforcement of the hazardous waste disposal fee and for the assessment and collection of any amounts due thereunder. Said sections shall, for the aforementioned
purposes, be considered part of this act and wherever liens or any other proceedings are defined as income tax liens or proceedings, they shall, when applied in enforcement or collection under this act, be described as hazardouswaste disposal fee liens andproceedings. (2) The department of health and welfare maybe made a party defendant in any action at law or in equityby any person aggrieved by the unlawful seizure or sale of his property, or in any suit for refund or to

recover an overpayment, but only the state ofIdaho shall be responsible for any finaljudgment secured against the department of health and welfare and saidjudgment shall be paid or satisfied out of the hazardous waste "disposal fee refund account. [I.C., § 39-4431, as addedby 1984, ch. 205, § 9, p.502.]

39-4432. Distribution of hazardous waste disposal fee revenues.

- The revenues received from the fees imposed by this chapter and any penalties, interest, or deficiency additions, shall be paid over to the state treasurerby the departmentto be distributedas follows: (1) An amount of money to maintain the hazardous waste disposal fee refund account, which is hereby created, and from which all refunds authorized to be paid by this act shall be paid, at a monthly balance often thousand dollars ($10,000) or at such greater sum as in the opinion ofthe department may be needed to meet reasonable requirements imposed on thehazardous waste disposal fee refundaccount. (2) The balance remaining with the state treasurer after deducting the
amounts in (1) above, shall be remitted periodically but no less frequently than quarterly, to the hazardous waste training, emergency and monitoring account created in section 39-4417B, Idaho Code. [I.C., § 39-4432, as addedby 1984, ch. 205, § 10, p. 502.]

Compiler's notes. Section 11 of S.L. 1984, Sec. to sec. ref. This section is referred to ch. 205 is compiled as § 67-2929. in § 39-4417B.

Section 14 of S.L. 1984, ch. 205 declared an emergency. Approved April 3, 1984.

# 1991 

# CUMULATIVE POCKET SUPPLEMENT

IDAHO CO.DE

Compiled Under the Supervision ofthe Idaho ·Code Commission

PHILLIP M. BARBER B. NEWAL SQUYRES, JR. M. ALLYN DINGEL, JR. COMMISSIONERS



# . ! 

### MAX M. SHEILS, JR.



# . EXECUTIVE SECRETARY t·
i



### VOLUME 7A 

# REPUBLISHED'SEPTEMBER, 1991

.For your convenience inreporting any errors in these sup: plementsorsuggestedimprovementsoradditionsyouwill find postpaid cards in the back of the 1991 Replacement Index Volumes.

.



### Place this supplement in 

### the pocket ofthe corresponding volume ofthe set

COPYRIGHT© 

### 1986, 1987, 1988, 1989, 1990, 1991

All Rights Reserved

By 

# I THE MICHIE COMPANY
LawPublishers

CHARLOTIESVILLE, VIRGINIA

### PUBLISHER'S NOTE

Amendments to laws and new laws enacted since the publication of the boundvolume down to and includingthe 1991 regular session are compiled in this supplement and will be found under their appropriate section numbers. The supplement contains annotations for the Idaho Code based on decisions ofthe state and federal courts. The annotations are derived from the following sources: Pacific Reporter 2nd Series through Volume 804, p. 688. Federal Supplement through Volume 754, p. 89l. Federal Reporter 2nd Series through Volume 924, p. 1067. United States Supreme Court Reports, Lawyers' Edition, 2nd Series through Volume 112, p. 865. Bankruptcy Reporter through Volume 123, p. 466. Opinions of Attorney General 1983-1 through 1990-8. Section numbers printed in black face type either refer to 

### sections ofthe

. original volume or to new acts not included therein

.. Title and chapter analyses, in these supplements, carry only laws that have been amended or new laws. Old sections that have nothingbut annotations are not included in the analyses. Following is an explanation ofthe abbreviations ofthe CourtRules used throughout the Idaho Code.
LR.C.P. Idaho Rules of Civil Procedure LR.E. Idaho Rules of Evidence LC.R. Idaho Criminal Rules M.C.R. Misdemeanor Criminal Rules LLR. Idaho Infraction Rules LJ.R. Idaho Juvenile Rules LC.A.R. Idaho Court Administrative Rules LA.R. Idaho Appellate Rules

ALWAYS CONSULT THE LATEST SUPPLEMENT IN CONNECTION WITH THE PERMANENT VOLUME

## ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE

Year Adjournment Date 1986 : March 28,1986 1987 April 1, 1987 1988 March 31, 1988 1989 March 29, 1989 1990 : March 30, 1990 1991 : March 30,1991

1 

# j •

.£1



### .r

111

# . -;.**~.**



### L.

-ec..

"'I:'**'.~** •

..**;.~** ...

'(;

..

. .. 

### 157 HAZARDOUS WASTE MANAGEMENT 

### 39-4403

CHAPTER 44

HAZARDOUS WASTE MANAGEMENT

SECTION. SECTION. 39-4403. Definitions. 39-4412. Inspections

- Right of entry [Ef39·4404. Consistency with federal law. fective July 1, 1993]. 39-4405. Rules and regulations in general. 39-4413. Enforcement procedures. 39-4408. Unauthorized treatment, storage, 39-4417A. [Reserved.] release, use or disposal of haz­ 39-4417B. Hazardous waste training, emerardous waste prohibited. gency and monitoring ac39-4409. Permit requirements for hazard­ count. ous waste treatment, storage, 39-4423. Disposal of restricted hazardous or disposal facilities. wastes prohibited. 39·4410. Transportation of hazardous 39-4424. Disposal of manifested waste. waste. 39-4425. [Reserved.] 39-4411. Records

- Reporting- Monitor39-4426. Appointment of health inspectors. ing [Effective until July 1, 39-4432. Distribution of hazardous waste 1993]. 39-4411. Records

- Reporting

- Monitor­ disposal fee revenues. ing [Effective July 1, 1993].



### 39-4401. Short title.

Sec. to sec. ref. This chapteris referred to Cited in: State v. Hanna Mining Co., 699 in §§ 39-7114 and 49-2206. F. Supp. 827 (D. Idaho 1987).



### 39-4403. Definitions. - As used in this chapter: (1) "Board" means the Idaho board of health and welfare. (2) "Commercial hazardous waste facility or site" means any hazardous
wastefacility whose primarybusiness is the treatment, storage or disposal, for a fee or other consideration, of hazardous waste generated off site by generators other than the owner and operator of the facility, (3) "Department" means the Idaho department of health and welfare. (4) "Director" means the director ofthe Idaho department ofhealth and welfare or the director's authorized agent. (5) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereofmay enter the environmentor be emittedinto the air or discharged into any waters, including ground waters. (6) "Generator"means any person, who by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the creation of a hazardous waste

.

.(7) "Hazardouswaste"means a waste or combinationofwastesof a solid, liquid, semisolid, or contained gaseous form which, because ofits quantity, concentration or characteristics (physical, chemical or biological) may: (a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or (b) Pose a substantial threat to human health or to the environment if improperlytreated, stored, disposedof, or managed. Suchwastes include, but are not limited to, materials which are toxic, corrosive, ignitible, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in do­

### '.

;i, 

### 39-4403 HEALTH AND SAFETY**158':~**


### mestic sewage, or solid or dissolved materials in irrigation return flows 

## ·r

or industrial discharges which are point sources subjectto nationalpollu,**'.~.** 

### tion discharge elimination system permits under the Federal Water Pol. 

# 1

<"; 

### lution Control Act, as amended, 33 U.S.C., Section 1251 et seq., or source;

# l special nuclear, or by-product material as defined by the Atomic Energy

# ''t
Act of 1954, as amended, 42 U.S.C., Section 2011 et**seq..·~** 

### (8) "Hazardous waste management" means the systematic control ofthe :-S 

### collection, source separation, storage, treatment, transportation,**process-:~~** 

### ing, and disposal of hazardous wastes. .' (9) "Hazardous waste facility or site" means any property, structure, or:'; ancillary equipment intended or used for the transportation, treatment,.:' storage or disposal of hazardous wastes.

­ (10) "Injection" means the subsurface emplacement of free liquids..t (11) 

### "Manifest" means a form used for identifyingthe quantity, composi·c tion, origin,routing, waste identification

### codets), anddestinationofhazard-

. ous waste during any transportation from the point of generation to the point of.treatment, storage or disposal. (12) "Manifested waste" means waste which at the point of origin or generation is required to be manifested for transportation in a manner' similarto thatofthe federal uniform hazardous waste manifest or by other': manifest requirements designed to assure proper treatment, storage and disposal of such waste: (13) "Person" means any individual, association, partnership, firm,joint stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency, orinstrumentality, or any other legal entity which is recognized by law as the subject of rights and duties. (14) "RCRA" means the Resource Conservation and Recovery Actof 1976 as amended in 1978, 1980 and 1984. (15) 

### "Restricted hazardous waste" means either of the following: (a) Anyhazardouswaste which contains anyofthe following substances, in the following'concentrations, as determined without considering any dilution which may occur, unless the dilution is a normal part of the manufacturing process: (i) 

### Liquid hazardous wastes containing free cyanides or sulfides at. concentrationsgreaterthan, orequal to, onethousand (1,000) partsper million. (ii) 

### Liquid hazardous wastes containingany ofthe following metals or elements, or compounds of these metals or elements, at concentrations..' greater than, or equal to, any of the following: Arsenic

.. 500 parts per million Cadmium 100 partsper million Chromium (VI) ................•....................... 500 parts per million Lead.

.......... .. .. .... .. . . .. .. .. .. .. .. .. .. .. .. .. .. .... .. 500 parts per million Mercury 20 parts per million Nickel 134parts per million Selenium 100 parts per million Thallium 130 parts per million'.It 

### -'I

" .
"

! 

## 159 HAZARDOUS WASTE MANAGEMENT 

### 39-4404

(iii) Liquidhazardous wastes havinga pHless thanor equalto two (2). (iv) Liquid hazardous wastes containing polychlorinated biphenyls at concentrations greater than, or equal to fifty (50) parts per million. (v) Hazardous wastes containing halogenated organic compounds in total concentration greater than, or equal to, one thousand (1,000)

.milligrams per kilogram. (b) 

### A hazardous waste may be classified as a restrictedhazardous waste bytheadoptionofrules andregulationsby theboard,takinginto account thehazardouswastesbannedfrom landdisposalby the

## V.S. environmental protection agency. (16) "Storage" means the containment ofhazardous wastes, on a temporary basis or for a period of years, in such a manner as not to constitute

.: disposal of such hazardous wastes

.. (17) "Transportation" meansthe movement ofany hazardous waste to 

### or from a hazardous waste facility or site. (18) "Transporter" means any person who transports a hazardous waste 

## to or from a hazardous waste facility or site. (19) "Treatment" rneans any method, technique, or process, including neutralization, which is designed not to 

### be an integralpart of a production process, but which is rather designed to change the physical, chemical, or biological character or composition ofany hazardous waste prior to storage

or final disposal so as to neutralize suchwaste or so as to render suchwaste nonhazardous or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition ofhazardous waste so as to render itnonhazardous.

. (20) "Waste" means any solid, semisolid, liquid or contained gaseous material for which no reasonable use or reuse is intended or which is intended to be discarded. [I.C., § 39-4403, as added by 1983, ch. 154, § 1, p. 416; am. 1984,ch.205,§ 1,p. 502; am. 1986,ch. 148,§ 1,p.415;am. 1986, ch. 324, § 1, p.. 794; am 1989, ch. 253, § 1, p. 626.]

Compiler's notes. Section 2 of S.L.1986, Section 2 of S.L. 1989, ch. 253 is compiled ch. 148 is compiled as § 39-4405. as § 39-4424.

Section 2 of S.L. 1986, ch. 324 is compiled Sec. to sec. ref. This section is referred to

as § 39-4423. in § 39-4423.



### 39·4404. Consistency with 

### federal law.

- The legislature intends thatthe stateofIdaho enact and carry out a hazardous wasteprogramthat will enablethe state to assume primacy overhazardous waste control from the federal government. The legislature finds that the RCRA, as amended, 42 

## V.S.C:, Section 6901 et seq., and regulations adopted pursuant thereto, establish complex and detailed provisions for regulation of those who generate, transport, treat, store, anddispose ofhazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of all ofthe regulations which have been or will be established under RCRA. However, by the provisions ofthis chapter, the legislature desires to avoid**}~** .. 

### 39-4405 HEALTH AND SAFETY 

### 160

# 1 \ the existence of duplicative, overlapping or conflicting state and

## federal'~ regulatory systems. "f!**~,,;:~.** . 

### Therefore, the board is directed to promulgate rules and regulations'·jl· which are in substance consistent with RCRA andthe federal**regulationS:~'** 

### adopted by the administrator of the United States environmental protec:':i tion agency to implementRCRA. Until such time as the board has promul."'i gated rules and regulations concerning mining and mineral wastes and':t materials under study by the administrator, those wastes and materials·'.i shall not be considered or defined as hazardous wastes under this**chapter;~~** 

### provided, however, that spentpotliners from primary aluminum reduction,;:1.

or environmental protection agency hazardous waste number K088, shall**.,~**

## b~ define.d as

## hazardo.u~ waste.

## Fa~ers and :anchers who treat, store,

## ~r~~;i dispose of waste pesticides from their operations on lands owned or**con-;~** 

### trolled by them shall not be required by board rules or regulations to**do;;;~** 

### anythingmore thanfollow the instructionson the pesticide label and triple]' rinse empty containers in accordance with the RCRA regulations of the**.~;** 

### environmental protection agency. The board may not promulgate any rule c. 

### or regulation thatwould impose conditions or requirements more stringent'

. or broader in scope than RCRA and the RCRA regulations ofthe environ-is, mentalprotection agency. Theboard may, however, promulgateproceduralY rules and regulations and rules and regulations specifically authorized by**':i~I:;** 

### this chapter or other state statutes without showing that those rules and 

## .1. regulations are required by RCRA or the regulations ofthe environmental 

## T protection agency; provided that those rules and regulations shall not**con-,:~** 

### flict withthis section, other sections ofthis chapter, RCRA, ortherules and .' regulations ofthe environmental protection agency. Any rule or regulation promulgated by the board shall be valid until it is repealed or modified .:;: 

### through the administrative process of section 67-5201, Idaho Code, et seq. [I.C., § 

### 39-4404, as added by 1983, ch. 154, § 

### 1, p. 416; am. 1986, ch. 182, § 

### 1, p. 479; am. 1988, ch. 6, §. 

### 1, p. 6; am. 1988, ch. 259, § 

### 1,**p~** 

### 498.]

Compiler's notes. This section was of the third paragraph, inserted "RCRA and amendedby two 1988 acts which appearto be the"; and in the sixth sentence of the third compatible and have been compiled together. paragraph, inserted "RCRA and." The amendment by ch. 6 deleted the second Section 2 of S.L. 1986, ch. 182, declared an and third sentences ofthe third paragraph as emergency. Approved April 1, 1986. they appear in the bound volume. The Section 2 of S.L. 1988, ch. 259 is compiled • amendment by ch. 259, in the first sentence as § 39-4409.

....

.**;-~**

-, 

### 39-4405. Rules and regulations in 

### general.

- Pursuantto the proce-";,:. dures established by the Idaho administrative procedures act, chapter**52,?~** 

### title 67, Idaho Code, the board shall adopt suchrules andregulations as**are',~**
., ..........., 

### necessary and feasible for the management of the generation,**collection'\~i.** 

### transportation,treatment, storage, anddisposal ofhazardouswastes within the state. The board shall also adopt such rules and regulations as neces-

__ sary to regulate persons who produce, burn, distribute, and market fuel" containinghazardous waste. The rules and regulations promulgated by the
,.. board shall be a part ofthis code and shall have the force and effect oflaw. Such rules and regulations shall include, but not be limited to:

### 161 HAZARDOUS WASTE MANAGEMENT 

### 39-4408

(1) Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter; (2) Rules and regulations for those who generate, transport, treat, store,

or dispose of hazardous wastes; (3) Rules and regulations, consistent with those issued by the United States environmental protection agency and the United States department , oftransportation, for containerization, labeling and manifesting ofhazardous wastes; (4) Rules and regulations specifying the terms and conditions under which the department shall issue, modify, suspend, revoke, or deny such permits as shall be required by this chapter;

;l:;':·.**:-,;~** ._­ 

### (5) Lists ofthose wastes or combinations ofwasteswhich are notcompat­

:..e.'-: 

### ible and which may not be stored or disposed of together;**'.,,:,,~. ~.**  :'fO'-•.•• ;:;';' 

### (6) Procedures and requirements for the reporting of the generation,**~~~~** .":.'. 

### transportation, treatment, storage or disposal of hazardous wastes; (7) Rules and regulations establishing standards and procedures for the training of personnel at generation sites and at hazardous waste facilities and sites; (8) 

### Releasedetection, preventionandcorrectionregulations applicableto all owners and operators ofunderground storage tanks, as may be necessary to protect human health and the environment. [LC.,§ 39-4405, as

- , 

### added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 148, § 2, p. 415.]**~.'** . Compiler'snotes. Sections 1 and 3 of S.L. 1986, ch. 148 are compiled as §§ 39-4403 and 39-4408.



### 39·4408. Unauthorizedtreatment, storage,release,use ordisposal of hazardous waste prohibited. - (1) No person shall treat or store hazardous waste; nor shall any person discharge, incinerate, release, spill, place, or dispose any hazardous waste in such a manner that the waste, or anyconstituentthereof, mayenterthe environment,unlessthe department

.. " ,f 

### has issued said person a permit or a variance as required for the specific

", { 

### activity involved or exempted the activity from permit requirements.

, 

### (2) Effective six (6) months after the effective date [July 1, 1986] of this provision, nonhazardous liquids shall not be disposed ofin a landfill for which a permit isrequired under section**39~4409,** 

### Idaho C-ode, or which is operating pursuant to interim status granted under section 3005(c) of RCRA, unless the owner'or operator of the landfill demonstrates to the director that: (a) The only reasonable alternative is placement in a landfill or unlined surface impoundment which contains or may contain hazardous waste; and (b) Placementinthe owneroroperator'slandfill will notpresent a risk of contamination of any existing or potential underground source of drinking water. (3) Waste or used oil or other material which is contaminated or mixed with any hazardous waste, other than wastes identified solely on the basis of ignitibility, shall not be used for dust suppression or road treatment.

### 39-4409 HEALTH AND SAFETY

(4) 

### The board shall have authority to prohibit: (a) Land disposal of any hazardous waste;**and,.,:,c:~.** 

### (b) Storage ofany hazardous waste prohibitedfrom land disposal,**unless.i~t** 

### . such storage is solely for thepurpose ofthe accumulation ofsuch quanti- ;2i 

### ties of hazardous waste as are necessary to facilitate proper**recovery,;~:** 

### treatment or disposal. [I.C., § 

### 39-4408, as added by 1983, ch. 154, § 

### 1, p. 416; am. 1986, ch. 148, § 

### 3, p. 415.]

Compiler's notes

.. Section 3005(c) or Section 2 of S.L. 1986, ch. 148 is compiled:: RCRA referred to in this section is compiled as § 39-4405. .. ' as 42**U.S.C.~** § 6925(c).



### 39-4409. Permit requirements for hazardous waste treatment,

.. storage, or disposal facilities! - (1) No person shall construct, operate,'. or modify a hazardous waste treatment, storage, or disposal facility or site':ii withouta permitfrom thedepartment.Theowner or operatorofthefacility**~:~:~** 

### or siteratherthanthebuildershallbe responsible for obtainingthepermit.

## ~?~I Permits may contain such conditions necessary to 

### protect human**health',J-i~** 

### and environment.Theboard mayexemptclasses or categories ofhazardous

## ">2.1:1
wastetreatment, storage, or disposalfacilities from thepermitrequirementj if the exemption is in the public interest and consistent with RCRA**re~. :':~!,t**  

### quirements. The fact that a class or category of such facilities is not re-**~; :.;;~**  

### quired to obtain a federal permit shall be persuasive evidence that**an":~)** 

### exemption is in the public interest.

.**~~!** 

### (2) Interim status granted by RCRA or a permit issued by the United :**~~:-t:** 

### States environmental protection agency prior to the date that the state**':,~.'** 

### programis authorized bythe administrator ofthat agency shallbe adopted**·:,L~** 

### by the department as a state granted interim status or as a state granted

### .,:,,~...,-Ji

### permit until the department issues a new state·permit. The,board may**""'::~** 

### adopt such rules and regulations as necessary to:

...**._~** 

### (a) Allow other facilities to qualify for interim status; 

# ,11 (b) Require existing interim status surface impoundments, new units,

.**/~~** 

### replacement ofexisting units andlateral expansions'ofexisting interim :**.~~~** 

### status facilities to comply with all regulations which apply to new facili-**-'~.~**

! 

### ties; and

-

# ¥

'1I 

### (c) Provide for the termination of interim status.

.**"~l**

I I I 

### (3) The board.**~hall pro~ul~ate** **rule~** 

### and regulati0n.s**establ~s.h~ng.the** 

# fi

i 

### terms and conditions for ISSUIng permits to the descnbed facilities and**::~:** i i 

### sites. The- rules and regulations shall provide for, but not be limited to: . 

## );1 (a)**Sta~~~ds** 

### and**~roc~dures** 

### for the safe operation and maintenance**ofl~i** 

### the facilities and sites;**7;:~** (b) 

### Education and training' qualifications of personnel at the facilities**.~~** 

### and sites·**:~:~** 

## , ...**~.~** 

### (c) Contractual commitment or consent to each facility or site from all**_j~** 

### holders ofinterests in the real property committed to that facility or site;:i (d) Monetary assurances in such form and amount as are necessary**for.:J~** 

### effective management, maintenance, and monitoring ofthe facilities and

.... ;"5-; 

### sites during and after operation;,· :;1i.,

..,.

'"**~~;;. ~.~~"** 

,. -' F; .

;.... : 

### 163 HAZARDOUS WASTE MANAGEMENT 

### 39-4409

(e) Evidence of financial responsibility for corrective action on-site and off-site; (f) 

### Liability insurance in such form and amount as is necessary to compensatefor potential damages causedby thefacilities and sites; provided, that liability insurance shall not be required in the event that liability insurance is not requiredby the federal regulations adopted pursuant to the RCRA; (g) Emergency equipment and emergency response plans appropriate to the facilities and sites;

. (h) Public participation in the permitting process consistent with 42 U.S.C.· section 6974(!?). (4) Permits shallbe issuedfor a periodnotto exceed ten (10) years or the maximum period allowed under·RCRA, whichever is greater. However, permits may be reviewed at least every five (5) years and modified as necessary to take into account changes in this chapter or regulations promulgatedpursuantto itandimprovementsintechnology. Permitsissuedto hazardous waste facilities and sitesby the departmentpriorto the effective date ofthis chapter shallbe reissued to conform withthe provisions ofthis chapter andthe rules and regulations promulgated under this chapter

. (5) Any permit issued after the effective date ofthis provision shall require corrective action to be taken on-site and off-site for all releasesof hazardous waste or constituents, from any solid waste managementunit at thetreatment, storage, or disposal facility seekingthepermit, regardless of the time when the waste was placed in such unit. Permits issued from November 8, 1985, until the effective date of this provision shall be reissued to conform with this provision. (6) Any permitissued underthis section may be revoked by the director pursuant to the provisions ofsection 39-4413, Idaho Code, ifthe.permitted party fails to comply with the terms and conditions of the permit, this chapter, or the rules and regulations promulgated under this chapter. (7) The department may issue a variance from the requirements of the rules andregulations promulgatedunderthis section, if, inthejudgmentof the director, application of the requirements would cause unreasonable hardship andthe granting of a variance would notbe harmful to the public interest or inconsistent with RCRA requirements. A variance shall not exceed one (1)year in duration andmaybe renewed orextended only.after the department provides public notice and an opportunity for public comment. (8) (a) The director of the department may issue a research, development anddemonstrationpermitfor anyhazardouswastetreatmenttechnology or process for whichpermitstandardsfor suchexperimental activityhavenotbeenpromulgated. Any suchpermitshallinclude suchterms and conditions as will assure protection of human health and the environment. Such permits shall: 1. 

### Provide for the construction ofsuch facilities, as necessary, and for operation ofthe facility for not longer than one (1) 

### year (unless renewed as provided below); and

### .,'" 39-4410 HEALTH AND SAFETY



### 2. Provide for the receipt and treatment by the facility of only those types and quantities ofhazardous waste which the director deems necessary forpurposes of determining the efficiency and performance ca- .•**~~** 

### pabilities ofthe technology or process and the effects of such technolvj; ogy or process on human health and the environment; and

..**:~".;:** 

### 3. Include such requirements as the director deems necessary to pro-···.·. tect human health and the environment (including, but not limited to,. requirements regarding monitoring, operation, insurance or bondingv« financial responsibility, closure, and remedial action); and 4. Include such requirements as the director deems necessary regardingtesting andproviding ofinformation to the director with respect to the operation of the facility. (b) 

### The director may apply the criteria set forth in paragraph (a) ofthis," subsectioninestablishingthe conditions ofeachpermitwithout separate establishment of regulations implementing such criteria. (c) For the purpose of expediting review and issuance of permits under this subsection, the director may, consistent with the protection of human health and the environment, modify or waive permit application andpermitissuance requirements established in the general permitreg-

.. ulations except that there may be no modification or waiver of regula-'
,, dons regardingfinancial responsibility (including insurance) or ofapplicable public participation procedures. (d) The director may renew a research, development and demonstration permit which has been issued pursuant to this subsection. The renewal term shall be no longer than one (1)year. A permit shall not be renewed

more than three (3) times. [I.e., § 

### 39-4409, as added by 1983, ch. 154, § 

### 1,p. 416; am. 1986,ch. 148, § 

### 4,p. 415; am. 1987,ch. 102, 

## § 1,p.204; am. 1988, ch. 7, § 

### .1, p. 7; am. 1988, ch. 259, § 

### 2, p. 498.]

Compiler's notes. This section was The words enclosed in parentheses so apamendedby two 1988 actswhich appearto be peared in the law as enacted. compatible and have been compiled together. Section 5 of S.L. 1986, ch. 148 is compiled The amendmentby ch. 7, in the first sentence as § 39-441l. ofsubsection (5), inserted "issued"; and added Sections 1 and 3 of S.L. 1988, ch. 259 'are subdivision (8)(d). The amendment by ch. compiled as §§ 39-4404 and 39-4413, respec­ 259, in subdivision (2)(b), inserted "existing tively. interim status surface impoundments"; and Sec. to sec. ref. This section is referred to in the first sentence of subsection (5), in­ in § 39-4413. serted "issued."



### 39-4410. Transportation ofhazardous waste.

- (1) 

### The board shall promulgate hazardous waste transportation rules and regulations to control the intrastate and interstate transportation of'federally'regulated types and quantities ofhazardous waste. Therules and regulations shall be consistent with the rules and regulations issued by the United States departmentoftransportation and the United States environmental protection agency. The rules and regulations shall also be consistent with the rules andregulations ofthe Idaho public utilities commission unless such consistencywould impairtheprimacyor the effectiveness ofthe state'shazardous waste management program. In that case the board shall confer with the-: .:**~.'**

:.

" ..

." 

### 165 HAZARDOUS WASTE MANAGEMENT 

### 39-4410

commission and endeavor to develop mutually acceptable transportation rules and regulations. Ifmutually acceptable rules and regulations cannot be developed, the board shall promulgate transportation rules and regulations that minimize conflict with the commission's rules and regulations while assuring the primary authority and effectiveness of the state's hazardouswaste managementprogram. Rules and regulations so promulgated by the board shall prevail over conflicting rules and regulations of the comrrussion.

.

### , 

### (2) Thehazardouswastetransportationrules andregulations shall apply to alltransporters offederally regulated types and quantities ofhazardous waste generatedeitherby themselves or by others. These rules andregulations shall apply to any movement of a regulated quantity of hazardous wastes to or from a hazardous waste facility or site. (3) The hazardous waste transportation rules and regulations shall provide for but not be limited to: (a) Standards for the containerization and labeling ofhazardous wastes;

; 

### (b) Standards for the handling and placarding ofhazardous waste shipments; (c) A hazardous waste tracking system requiring that: (i) 

### All transporters offederally regulated types and quantities ofhazardous waste obtain an identification number from the department, the environmental-protection agency, or another approved state program, before accepting hazardous waste-for transport; (ii) 

### All shipments of federally regulated types and quantities of hazardous waste to be shippedoffsite or receivedfrom offsitebe accompanied by a manifest or similar form describing the hazardous waste being shipped and its destination; (iii) A copy ofeachmanifestor similarform be returnedto the generator and/or originator of the shipment and-a copy be retained by the transporter for a minimum of three (3) years. (4) The hazardous waste transportation rules and regulations may provide for special routing of hazardous waste shipments in this state when necessary to protect the public health, the public safety, or the environment. (5) No commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, shall receive regulated quantities of hazardous waste as defined by federal law from a motor vehicle or trailer unless the hazardous waste is accompanied by a.proper manifest and the transporter has obtained a special permit from the Idaho transportation department as provided in section 49-433, Idaho Code. If an improperly documented shipment ofhazardous waste arrives at a permitted commercial hazardous waste facility or site, the owner or operator ofthe facility or site shall immediately notify the Idaho transportation department and the Idaho department of law enforcement. [I.C., § 39-4410, as added by 1983, ch. 154,§ 1,p.416;am. 1984,ch.205,§ 2,p.502;am. 1986,ch. 231, § 1,p. 627; am. 1988, ch. 265, § 568, p. 549.]-roo 

### 39-4411 HEALTH AND SAFETY 

### 166 T

Compiler's notes. Section 2 of S.L. 1986, chasing a vehicle registration on and after ch. 231 is compiled as § 39-4417B. July 1, 1986, to acquire a vehicle registration

Sections 567 and 569 of S.L. 1988, ch. 265 endorsement prior to January 1, 1987, and are compiled as §§ 36-1301 and 39-4426. any receipts therefrom shall be placed in the

Section 5 of S.L. 1986, ch. 231, read: "An Hazardous Material/HazardousWasteTransemergency existing therefor, which emer­ portation Enforcement Account which is cregency is hereby declared to exist, Section ated in section 49-2507, Idaho Code, which is 49-2512, Idaho Code, which is enactedby Sec­ enacted by Section 4, of this act and Section tion 4 of this act shall be in full force and 49-2507, IdahoCode, whichis enactedby Sec­ effect on and after this act's passage and ap­ tion 4 of this act shall be in full force and proval. The remaining provisions of this act effect on and after July 1, 1986. Approved shall be in full force and effect on and after April 3, 1986." January 1, 1987; provided, however, that the Section 586 of S.L. 1987, ch. 265 provided Idaho Transportation Board and Idaho that the act should become effective on and Transportation Department shall be authoafter January 1, 1989. rized to permit any person renewing or pur

### 39-4411. Records

- Reporting

- Monitoring [Effective until July ­ .7., 

### 1, 1993]. - (1) 

### Pursuant to the provisions of section 39-4405, Idaho Code, the board shall adopt, and amend as necessary, such rules and regulations relatingto records, reporting, and monitoring as maybe needed to achieve the purposes of this chapter. These rules may include, but shall not be limited to, prescribing procedures and requirements for: (a) The establishment, maintenance, and format of records and reports; (b) 

### The submittal of records and reports; (c) The taking of samples and the performing of tests and of analyses; (d) The use of approved monitoring methods and techniques; (e) The installation, calibration, use, and maintenance of monitoring equipment; and (f) 

### The provision of relevant information to the department. (2) Sixty (60) days after promulgation of the criteria and lists specified under section**39~4407,** 

### Idaho Code, and the rules and regulations required under section 39-4405, Idaho Code, and subsection (1) 

### of this section, the generation, transportation, treatment, storage, or disposal of a hazardous waste in this state by any person without reporting such activity to the departmentasrequiredby theregulationsissuedpursuantto subsection (1) 

### of this section shall be unlawful.

. (3) Information obtained by the department or by agents, contractors, or otherrepresentatives ofthe department, under any provisions ofthis chapter, shall be available to the public, unless the director certifies such informationmustbe keptconfidential. The directormaymake suchcertification upon a showing, to the satisfaction ofthe director, thatthe information, or parts thereof, ifmade public, would divulge methods, processes, or activities constituting trade secrets. Nothing in this subsection shall be construed as limiting the disclosure of information by the department to any officer, employee, or authorized representative of the state or the United States, as necessary to carry outthe provisions ofthis chapter or the provisions of RCRA. The provisions of this section shall not limit the department's authority to release confidential information during an emergency involving hazardous waste, if the director determines that release of the information is necessary to safeguard the public interest.

### 167 HAZARDOUS WASTE MANAGEMENT 

### 39-4411

(4) Each generator shall, at the discretion ofthe director, no later than thirty (30) days after the end of each calendar quarter submit a written report to the department including the following information: (a) The types and quantities of hazardous wastes generated; (b) The types and quantities of such wastes shipped for treatment and disposal by landfilling or other means of disposal; (c) The types and quantities of such wastes remaining in storage at the end ofthe reporting period; (d) Whether such wastes are destined for disposal or treatment in this state or whether such wastes are destined for disposal or treatment outside this state. (5) The operator ofeach hazardous waste disposal facility or site in the state shall, no later than thirty (30) days after the end of each calendar quarter, submit a written report to the department providing information

on the types and quantities of wastes received which were generated in Idaho, and information on the types and quantities of wastes received which were generated in other states. (6) Prior to December 31 of each year the department shall submit a report to the governor and the legislature detailing the types and quantitiesofhazardouswastes generatedinthis state, thetypes andquantities of such 'wastes shipped for treatment and disposal by landfilling or other

means of disposal, the types and quantities ofsuch wastes remaining in storage at the end of the most recent reporting period and the types and quantities ofhazardous waste generatedoutsidethis state and shippedinto this statefor storageor disposal. [I.C., § 

### 39-4411, as addedby 1983, ch. 154, § 

### 1, p. 416; am. 1984, ch. 258, § 

### 1, p. 618; am. 1986, ch. 148, § 

### 5, p. 415.]

Compiler's notes. For this section as ef- Sections 4 and 6 of S.L. 1986, ch. 148 are fective July 1, 1993, see thefollowing section, compiled as §§ 39-4409 and 39-4413. also numbered § 39-4411.



### 39-4411. Records

- Reporting

- Monitoring [Effective July 1, 1993]. -" (1) Pursuantto the provisions ofsection 39-4405, Idaho Code; the board shall adopt, and amend as necessary, such rules and regulations relating to records, reporting, and monitoring as maybe neededto achieve the purposes of this chapter. These rules may include, but shall not be limited to, prescribing procedures and requirements for:

.(a) The establishment, maintenance, and format of records and reports; (b) 

### The submittal of records and reports; (c) The taking of samples"and the performing of tests and of analyses; (d) The use of approved monitoring methods and techniques; (e) The installation, calibration, use,and maintenance of monitoring equipment; and 

## (0 The provision of relevant information to the department. (2) Sixty (60) days after promulgation of the criteria and lists specified under section 39-4407, Idaho Code, and the rules and regulations required under section 39-4405, Idaho Code, and subsection (1) of this section, the generation, transportation, treatment, storage, or disposal of a hazardous waste in this state by any person without reporting such activity to the. 

### 39-4411 HEALTH AND SAFETY 

### 168
departmentas requiredby theregulations issuedpursuantto subsection (1)

.' "." 

### of this section shall be unlawful. -:**.~,** 

### (3) Information obtainedby the department or byagents, contractors,or··

- .. 

### otherrepresentatives ofthe department, under any provisions ofthis chap- ­ ter, shall be available to the public, unless the information, or parts thereof, ifmadepublic,would divulge methods, processes, or activities constituting trade secrets, in which case the information shall be subjectto . disclosure according to chapter 3, title 9, Idaho Code. Nothing in this subsection shall be construed as limiting the disclosure ofinformation by the department to any officer, employee, or authorized representative of the state or the United States, as necessary to carry out the provisions ofthis chapter or the provisions of RCRA. The provisions ofthis section shall not limitthe department's authority to release confidential informationduring

an emergency involving hazardous waste, ifthe director determines that release of the information is necessary to safeguard the public interest. (4) Each generator shall, at the discretion of the director, no later than thirty (30) days after the end of each calendar quarter submit a written report to the department including the following information: (a) The types and quantities of hazardous wastes generated; - (b)'The types and quantities of such wastes shipped.for treatment and

_ disposal by landfilling or other means of disposal; (c) The types and quantities of such wastes remaining in storage at the end of the reporting period; (d) Whether such wastes are destined for disposal or treatment in this state or whether such wastes are destined for disposal or treatment out­ side this state. (5) The operator ofeach hazardous waste disposal facility or site in the state shall, no later than thirty (30) days after the end of each calendar quarter, submit a written report to the department providing information

on the types and quantities of wastes received which were generated in Idaho, and information on the types and quantities of wastes received which were generated in other states.

__. (6) Prior to December 31 of each year the department shall submit a report to the governor and the legislature detailing the types and quantities ofhazardous wastes generated inthis state, the types and quantities of such wastes shipped for treatment and disposal by landfilling or other

means of disposal, the types and quantities of such wastes remaining in storage at the end of the mostrecent reporting period and the types and quantities ofhazardouswaste generatedoutside this state and shippedinto this stateforstorageor disposal. [I.C., § 

### 39-4111, as addedby 1975, ch. 180, § 

### 2, p. 486; am. 1978, ch. 160, § 

### 1, p. 348; am. 1983, ch. 153, § 

### 8, p. 407; am. 1988, ch. 264, § 

### 16, p. 519; am. 1990, ch. 213, § 

### 43, p. 480.] ! iI i
I I

# i
i I


# I

.­ Compiler's notes. For this section as ef- Section 42 of S.L. 1990, ch. 213 is compiled**;;.;,:~.:** fective until July 1, 1993, see the preceding as § 39-1393. section, also numbered § 39-4411.<.

;.:. :; 

### 169 HAZARDOUS WASTE MANAGEMENT 

### 39-4412



### 39-4412. Inspections

- Right of entry [Effective July 1, 1993]. ­ (1)All inspections and searches conducted underthe authority ofthis chapter shall be performed in conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution ofthe United States and article I, section 17, of the constitution ofthe state ofIdaho. The state shall not, under the authority granted by this chapter, conduct warrantless administrative searches of private property in the absence ofeither consent from the property owner or occupier or exigent circumstances such as a public health or environmental emergency. (2) For the purposes of developing or enforcing any provision of this chapter or any rule or regulation authorized by this chapter, any duly authorized state employee or representative may, upon presentation of appropriate credentials, at any reasonable time: (a) Enter upon any private or public property where hazardous wastes

are or havebeen generated, transported, treated, stored, or disposed of

### to inspect and to secure samples ofsuch wastes, their containers, and their labels; (b) 

### Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other

meansofconveyance wherehazardouswastes areor havebeencontained to inspect and to secure samples of such wastes, their containers, and their labels; (c) Enter any private or public property, or means of conveyance, where records, reports, information or test results relating to the generation, transportation, treatment, storage, or disposal ofhazardous wastes exist to inspect and copy such documents. (3) Upon request by an authorized agent of a property owner or facility operator,the departmentshallprovide thepropertyowneror facility operator with a receipt for samples takenand a copy of sample analysis. Duplicate samples shall similarly be provided upon request if the requesting party agrees to have the samples analyzed and to share the results ofthe analysis with the department. (4) The right ofentry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability ofthe facility owner or operator. The right ofentry of a duly authorized state or health district employee shall notbe subjectto any confidentialityrequirements other than those specifiedin section 39-4411(3), Idaho Code, and chapter 3, title 9, Idaho Code. The right of entry of a private contractor working in a representative capacity for the department may, however, be made subject to additional confidentiality requirements so long as those requirements do not interfere unreasonably with the development ofinformation by the department or the transmission of information from the contractor to the department or the United States environmental protection agency. (5) Any magistrate or district courtjudge is authorized toissue an administrative search warrant upon a request from the director describing reasonable cause for issuance of the warrant or the existence of a reason­

### 39-4413 HEALTH AND SAFETY



### able program ofinspection. [LC., § 

### 39-4412, as added by 1983, ch. 154, § 

### I,
p. 

### 416; am. 1990, ch. 213, § 

### 44, p. 

### 480.]

Compiler's notes. For this section as in amended by § 16 of S.L. 1991, ch. 329 proeffect until July 1, 1993, see the bound vol­ vided that §§ 3 through 45 and 48 through

ume. 

## no ofthe act should take effect July 1, 1993

Section 45 of S.L. 1990, ch. 213 is compiled and that §§ 1,2,46 and 47 should take effect
as § 39-5211. July 1, 1990.

Section III of S.L. 1990, ch. 213 as

..

### ~. 

### 39-4413. Enforcement procedures. - (A) Whenever the director**de~ '~1**  

### tennines that any person is in violation ofany provision ofthis chapter orj any permit, standard, regulation, condition, requirement, compliance 

# I agreement or order issued orpromulgatedpursuant to this chapter, one or**.:.~** 

### more of the following actions may be**taken:'~~** ·.·ih 

### (1) ADMINISTRATIVE ENFORCEMENT ACTIONS.

-··Ii 

### (a) Notice. The director may commence an administrative enforcement**,~** 

### action by issuing a written notice of violation. The notice of violation .& 

### " shall identify the alleged violation with specificity, shall specify each**-~** 

### provision of the act, rule, regulation, permit or order which has been

. f§. 

### violated, and shall state the amount of civil penalty claimed for 'each'f violation. The notice of violation shall inform the person to whom it is**.~** :"$ 

### directed of an opportunity to confer with the director or the director's designee in a compliance conference concerning the alleged violation. A writtenresponse maybe requiredwithinfifteen (15) days ofreceipt ofthe notice of violation by the person to whom it is directed. (b) 

### Scheduling Compliance Conference. If

### a recipient of a notice ofviolation contacts the department within fifteen (15) days of the receipt of notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days ofthe date ofreceipt of notice, unless a laterdate is agreeduponbetweentheparties: If

### a compli- .

ance conference is not requested, the director may proceed with a civil enforcement action as provided in subsection (3) 

### of this section. (c) Compliance Conference. The compliance conference shall provide an opportunityfor therecipientof a notice ofviolationto explainthecircumstances of the alleged violation and, where appropriate, to present a proposal for remedying damage caused by the alleged violation and for assuring future compliance. If

### the recipient and the director agree'on a

. plan to remedy damage caused by the alleged violation and to assure

future compliance, they may enter into a consent orderformalizing their agreement. The consent order may include a provision for payment of any agreed civil penalty. (d) Effect of Consent Order. A consent order shall be effective immedi-­ ately upon signing by both parties and shall preclude any civil enforcement action for the same alleged violation. If

### a party does not comply with the terms ofthe consent order, the director may seek and obtain in any appropriate district court specific performance of the consent order and such other relief as authorized in this chapter. (e) Failure to Reach Agreement on Consent Order. If

### the parties cannot reach agreement on a consent order within sixty (60) days after the

# , !­

c
;. .:.. 1: -cv­ , ­

,

,

, ­ i

os.

"'f.**':'~'** 

### 171 HAZARDOUS WASTE MANAGEMENT 

### 39-4413
receipt of the notice of violation, or if the recipient does not request a compliance conference pursuantto subsection (A)(1)(b) ofthis section, the director may commence and prosecute a civil enforcement action in district court, in accordance with subsection (A)(3) of this section. (2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS. (a) Grounds. The directormay revoke or temporarily suspend the permit ofany hazardous waste facility or site pursuant to the grounds provided in subsection (6) of section 39-4409, Idaho Code. A violation that is shown to have occurred as the result of an unforeseeable act of God despite a permitted party's reasonable efforts to comply with all applicable legal requirements shall not be grounds-for a suspension or revocation. (b) 

### Notice ofHearing. The director shall commence a permit suspension

or revocation actionby givinga permittedparty a writtennotice ofintent to suspendor revoke. Thenotice shall inform thepermittedparty offacts

or conduct which warrant suspension or revocation of the permit. The notice, hearing, andrecord requirements for contested cases contained in the Idaho administrative procedure act, chapter 52, title 67, Idaho Code,

_

and subsection (A)(2)(c) of this section shall apply to proceedings initiated under this subsection. Revocation or suspension of a permit shall become final fifteen (15) days after delivery of the notice of intent 

## to revoke or suspend unless the permitted party requests a hearing. (c) Administrative Hearing Provisions. (i) 

### Upon a timely request by a permit holder for a hearing to review thedirector's actionunder subsection(A)(2)(b) ofthis section, the director shall promptly conduct a hearing open to the public. The contested

case provisions oftheIdaho administrativeprocedure act shall applyto all hearings conducted under this subsection. (ii) 

### The director shall have the authority to request from- the district courtin and for Ada county or any other appropriate district court the issuance ofan order in the nature of a subpoena compelling the attendance and testimony of witnesses and the production before the director ofpapers, books, drawings, documents, test results, and other evidence relevant to a permit suspension or revocation investigation or adjudication. (iii) 

### After the hearing, the director shall issue a written opinion setting forth findings of fact, conclusions of law and an order. 

### An ag­ -grieved person subject to the director's order may seek its review as a final order in a district court as provided by the Idaho administrative procedure act. District court review of the director's decision shall be limited to the record developed before the director. (3) CIVIL ENFORCEMENT ACTION. The attorney general may como

### mence and prosecute in district court a civil enforcement action. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred, and may be brought against any person who is alleged to have violated any provision of this chapter or any rule, regulation, permit, condition, requirement, consent order, or order which has become effective pursuant

### 172 

# • 39-4417A HEALTH AND SAFETY



### to this chapter. Such action may be brought to compel compliance with anyprovision ofthis chapter or with any rule, regulation, permitor order promulgatedhereunder, and for any reliefor remedies authorized in this chapter. The director shall not be required to initiate or prosecute an administrative action before the attorney general may commence and prosecute a civil enforcement action. In addition, the" attorney general may delegate this authority regarding civil enforcement actions to the prosecutingattorney ofthe county where a civil enforcement action may arise, (B) ACTIONS AGAINST GUARANTORS. Ifthe owner oroperator is in bankruptcy, reorganization or other arrangement pursuant to the federal bankruptcy code, orwherejurisdiction cannotbe obtained over an owner or operator likely to be solvent at the time ofjudgment, an action may be broughtdirectly against a guarantor offinancial responsibilityby the state

or any injured party for any claim arising from conduct for which guarantees offinancial responsibility have been made. The guarantor may invoke all rights and defenses which would have been available to the owner or operator and all rights and defenses normally available to the guarantor. (C) LIMITATION OF ACTION"FOR ADMINISTRATIVE AND CIVIL COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF THIS CHAPTER. No civil or administrative proceeding may be brought to

recover for a violation ofthis chapter or any permit, standard, regulation, condition, requirement or order issued or promulgated pursuant to this chaptermore than two (2) years after the director had knowledge or ought reasonably to have had knowledge of the violation. [LC., § 

### 39-4413, as addedby 1983, ch. 154, § 

### 1, p. 416; am. 1986, ch. 148, § 

### 6, p. 415; am. "1988,

" - 

### ch. 259, § 

### 3, p. 498; am. 1989, ch. 38, § 

### 1, p. 49.]

Compiler's notes. The federal bankruptcy Section 2 of S.L. 1988, ch. 259 is compiled code referred to in subsection (B) ofthis sec­ as § 39-4409. tion is compiled as 11 

## u.s.C., § 101 et seq.

Section 5 of S.L. 1986, ch. 148 is compiled

as § 39-4411.



### 39-4417A. [Reserved.]

39-4417B. "Hazardous waste training, emergency and monitoring account,

- (1)Thereis herebycreated an account inthe dedicatedfund in the state treasury to be designated the hazardous waste training, "emergency and monitoring account.

"(2) The account shall consist of: (a) Moneys appropriated to the account; (b) 

### Moneys as provided in section 39-4432, Idaho Code; (c) Donations, gifts and grants from any source; and (d) Any other moneys which may hereafter be provided by law. "(3) Moneys in the account may be appropriated for any or all of the following purposes: (a) Acquisition of property and equipment by the department of health and welfare to analyze, monitor, contain, collector dispose of hazardous wastes;

# • 173 HAZARDOUS WASTE MANAGEMENT 

### 39-4423

(b) Employment of or contracting with necessary personnel to analyze, monitor, contain, collect or dispose of hazardous wastes; or (c) Employment ofindividuals or contracting with individuals or corporations to respond throughout the state to health and environmental problems which maybe causedby hazardous waste emergencies or spills, improperly packaged or handled hazardous waste or the alleviation of damages to the people and environment ofthe state of Idaho caused by

· such emergencies or spills.

.

(d) Taking removal or remedial action relating to hazardous wastes which the department deems necessary to prevent, minimize or mitigate damage to the public health and welfare or the environment.·[I.C., § 

### 39-4417B, as addedby 1984, ch. 205, § 

### 3, p. 502; am. 1986, ch. 231, § 

### 2, p. 

### 627.]

Compiler's notes. Sections 1 and 3 of S.L. 1986, ch. 231 are compiled as §§ 39-4410 and 39-4426, respectively.



### 39-4423. 

### Disposalofrestrictedhazardous wastesprohibited.:- (1) 

### Notwithstandinganyotherprovision oflawto the contrary, no person shall discharge, deposit, inject, dump, spill, leak, or place any restricted hazard-'

ous waste,as defined in section 39-4403, Idaho Code, into or on any land or water at a commercial hazardous waste facility or site.

·(2) The department may issue a variance from the requirements of subsection (1) ofthis section, if, in thejudgment ofthe director, application of the requirements would cause undue hardship and the granting of the variance would not be harmful to the public interest or inconsistent with RCRA requirements. In issuing the variance, the director shall take into account: (a) The long-term uncertainties associated with land disposal; (b) 

### The goal ofmanaginghazardous wastes in anappropriate manner in the first instance; and (c) The persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents. (3) (a)

.The board shall promulgate rules and regulations specifying those levels or methods oftreatment, ifany, which substantially dimin­

·ish the toxicity of the waste or substantially reduce the likelihood of

. migration of hazardous constituents from the waste so that short-term

·and long-term threats to human health and the environment are minimized. (b) Ifsuchrestricted hazardous waste has been treated to the level or by

a method specified in regulations promulgated under this subsection, such waste or residue thereof shall not be subject to the prohibition in subsection (1) of this section and may be disposed of in a land disposal facility whichmeetstherequirements ofthis chapter. [I.C., § 

### 39-4423, as added by 1986, ch. 324, § 

### 2, p. 794.]

..

# • Compiler's notes. Section 1 of S.L. 1986, ch. 324 is compiled as § 39-4403.



### 39-4424. Disposal ofmanifested waste.

- Manifested waste, as that term is defined in section 39-4403, Idaho Code, shall only be treated, stored

or disposed of in this state at a permitted hazardous waste treatment, storage or disposal facility unless the burning of such manifested waste to 

### produce heat is otherwise lawful.. [I.C., § 

### 39-4424, as added by 1989, ch. 253, § 

### 2, p. 

### 626.] ,

Compiler's notes. Section 1 of S.L. 1989, Section 3 of S.L. 1989, ch. 253 declared an ch. 253 is compiled as § 39-4403. emergency. Approved March 29, 1989.



### 39-4425. [Reserved.]

39-4426. Appointmentofhealthinspectors. - (1)The departmentof

/ 

### health and welfare shall assign a sufficient number of employees and equipment to inspect hazardous waste facilities or sites permitted under section 39-4409, Idaho Code, and locatedinIdaho where disposal ofhazardous waste occurs for the purpose of assuring the protection of the health and safety ofthe public by monitoring the receipt and handling ofhazardouswastes which have been transported by common carrier. (2) The employees ofthe department ofhealth andwelfaredesignatedin subsection (1) of this section shall be agents of the Idaho transportation departmentandthepublicutilities commissionfor thepurpose ofcollecting regulatory and registration fees pursuant to sections 61-811 and 61-812, Idaho Code, and for collecting fees andpermits pursuantto chapter4, title 49, Idaho Code, which fees have not otherwise been lawfully paidby transporters to the public utilities commission, the Idaho transportation department or a county assessor in this state and for issuingpermits pursuant to section49-22202 [49-2202], Idaho Code. All moneys collectedby the department's employees as agents ofthe Idahotransportation departmentand the public utilities commission shall be remitted to the state treasurer for deposit in the proper account as provided by law. ' (3) .All employees of the department designated pursuant to subsection (1) ofthis section shall alert proper authorities or peace officers regarding violations pursuant to this chapter,'violations, pursuant to title 61, Idaho Code, and violations pursuantto title 49, Idaho Code, and violations to any rules and regulations issued pursuant to any of the aforementioned code sections. All actionsbroughtfor violations oftheprovisions ofthis chapteror rules andregulationspromulgatedpursuantthereto shallbe brought as,provided for in this chapter. All actions brought for violations of the provisions of title 61, Idaho Code, or oftitle 49, Idaho Code, shall be brought as provided in those titles. [I.C., § 

### 39-4426, as added by 1984, ch. 205, § 

### 4, p. 502; am. 1986, ch. 231, § 

### 3, p. 627; am. 1988, ch. 265, § 

### 569, p. 549.]• : <.' • • .: I

. :'.' .' ':**.~.** .,**~:** ' .

. '::. I... • 

# •

. I 

### 175 NATURAL DEATH ACT 

### 39-4432

Compiler's notes. The bracketed refer­ Sections 568 and 570 of S.L. 1988; ch. 265

ence "49-2202" in subsection (2) was inserted are compiled as §§ 39-4410 and 40-701. by the compiler. Section 586 of S.L. 1987, ch. 265 provided

Sections 2 and 4 of S.L. 1986, ch. 231 are

.that the act should become effective on and compiled as §§ 39-4417B and 44-2501 ­ after January 1, 1989. 44-2515, respectively.



### 39-4429. Books andrecordstobepreserved

- Entryandinspection by department of health and welfare

..

"Water" and "Chemical" Distinguished. water shouldnot be consideredto bea "chemThe legislature has indicated by its use of ical." Moosman v. Idaho Horse· Racing the word "chemical" in several statutes that Comm'n, 117 Idaho 949, 793 P.2d 181 (1990).



### 39-4432. Distribution of hazardous waste disposal fee revenues.

- The revenues received from the fees imposed by this chapter and any penalties, interest, or deficiency additions,·shall be paid over to the state treasurer by 

### the department to be 

### distributedas follows: (1) An amount of money to maintain the hazardous waste disposal fee· refund account, which is hereby created, andfrom which all refunds authorized to be paid by this act shall be paid, at a monthly balance of ten thousand dollars ($10,000) or at such greater sum as in the opinion of the department may be needed to meet reasonable requirements imposed on the hazardous waste disposal fee refund account. (2) The balance remaining with the state treasurer after deducting the amounts in (1) above, shall be remitted periodically but no less frequently thanquarterlyas follows:ninety-fivepercent (95%) shallbe remittedto the hazardous waste training, emergency and monitoring account created in section 39-4417B, Idaho Code, andtheremainingfive percent (5%)shallbe remitted to the county treasurer ofthe county or counties where theaetivity occurred which caused the fees to be assessed pursuant

## to this chapter. Moneys shallbe apportioned to the counties inthe same proportional manner in which they were collected. Moneys returned to counties shall be utilized by the county to respond to health and

### environmental problems which maybe caused by hazardous waste emergencies or spills, or.improperly handled or packaged hazardous waste. [I.C.; § 

### 39-4432; as added by 1984, ch. 205, § 

### 10, p. 502; am.·1989, ch. 419, § 

### ·1, p.1023.] .<.-



### CHAPTER 45·

NATURAL DEATH ACT

SECTION. SECTION. 39-4502. Statement of policy. .39-4506. Revocation. 39-4503. Definitions.

.. 39-4507. Execution of directive.**39~4504.** Living will. 39-4508. Immunity. 39-4505. Durable power of attorney for 39-4509. General provisions. health care.f) ,

, I



# APPENDIX V

IDAHO PUBLIC RECORDS ACT

I



### ,... v



# • I' • 

# )

# • •
9-204

.. EVIDENCE 642

9-204. Judge orjurormay testify._ The iud e hi " . may be called as a witness by either party**b~t i~**  s**I~self,** 

# 0:**a~Y.Juror,** discretion ofthe court to order the tri I to uc case It IS In the
to takeplace before anotherjudgeor

### jU~.**[c.c:;~i~~~e~ o;O~~~~nd~dC**  ant C.L., § 5959; C.S., § 7938; I.C.A., § 16.204.J '
,. ., . .,

Cross ref. See notes, § 9.201. .Competency of prosecuting attorney' as a Collateral References. 81 Am. Jur. 2d witness. 54 A.L.R3d 100. WItnesses, §§ 101 - 102. '

97 C.J.S., Witnesses, §§ 105, 108.**JUd~e** as a witness in a cause on trial be. fore him. 157 A.L.R 315."
9-205. Interpreters I . '1 " . it . - n any CIVI or criminal action in who h**w~** ness or a**pa~y** does not understand or speak the English I IC any

w 0**~as** a physical handicap which prevents him from f II**a~gu~ge,** or speaking the English I th h u y earmg or interpreter to interpret**~~guage, d~n**  t e court shall appoint a qualified
ness . e procee ings to and the testimony of such wit.
to

### ha~:**i::~~~~:t:~~~~~~e~~:f suc~**  interpreter, the court shall cause

### i~terpreter shall be sworn to

### :~ur:t:~y**P:~;~:I~ o~~:**  witnesses,

### an~ such**glv~n** at the hearing or trial to the best of his**a~lit ~;,et**  the**tes~lmo~y** duties as an interpreter The court shall d te . y e ore assuming his h .

. e rmme a reasonable fee fo II sue mterpreter services which shall b .d t f I' a al funds. [I.C., § 9-205, as added by' 1975e cPh 64" ou§ O the general county

, . , 2, p. 130.J
Compiler's notes. Former § 9·205 which comprised C.C.P. 1881, § 901; RS., 

### ic., &**Se~ion** 3 of S.L. 1975, ch. 64, is compiled herem as § 9·1603. C.L., § 5960; C.S., § 7938; I.C.A., § 16-205

was repealed by S.L. 1975, ch. 64, § 1. ' Cross ref. Interpreters" fees, § 9.1603.

DECISIONS UNDER PRIOR LAw

ANALYSIS Drug**~ddiction** by interpreter. Necessity question of law. State's right to examine defendant. Drug Addiction by Interpreter.

Where the victim of a homicide was a Chi.
nese, unfamiliar with the English language, and hISpurported dyingstatementwas inter. preted. by a Chinese interpreter and taken down m shorthand by a stenographer evi**d~nce** of the fact that the interpreter was ad. dieted to the use of opium or otherdrugs was competent for the purpose of showing the**ment~1** balance of such interpreter, and his capaci ty to rememberthe questions that were propounded by the Prosecuting attorney throug,h him to the deceased, and the de. ceased s answers thereto as the admissibility of such purported dying declaration depended on the.truthfulness and accuracy of the inter. pretauon of such. questions and answers. State v, Fong Loon, 29 Idaho 248 158 P 233 (1916). ' .
Necessi.ty Question of Law.**~uestlOn** whether or not witness requires

an m.terpreter ISa question for court. State v BOgrIS, 26 Idaho 587, 144 P. 789 (1914). .

State's Right to**Ex~mine** Defendant

Because.of claim that he cannot under.**stan~** English, the statecannotbe deprived of the r.lght to cross-examins the defendant in a criminal action, and the state may call wit. nesses to .prove the defendant can speak En. gliah, which evidence should be taken, how. ever, out of the presence of the jury. The right to**ha~e** su.ch evidence heard by the court alon.e ISwaived, however, unless request that the Jury be excused is made. State v. Bogris 26 Idaho 587, 144 P. 789 (1914). '

Dollaternl References. 81 Am. Jur. 2d Witnesses, § 100. '

98 C.J.S., Witnesses, § 326. 643 PUBUC WRITINGS 9-206

9-206. Deceased orabsentwitnesses

- Transcribed testimony admissible. - The testimony of a witness who testified at the trial in an action or proceeding in any district court of the State of Idaho, when transcribed and certified to be true or correct by the court reporter reporting such testimony at such trial or proceeding, shall be admissible at any subsequent trial between the same parties and relating to the same subject matter, when such witness is deceased, absent from the state or otherwise unavailable or unable to testify as a witness. [1945, ch. 16, § I, p. 25.J

Deceased Witness of Other Case.

Transcribed testimony of since deceased witness before industrial accident board was properly ruled inadmissible in murder prosecution, although the sanity of accused was in controversy, the witness was another' victim and was examined both on direct and crossexamination; the parties and issues involved were not the same, and neither the state nor the accused had any opportunity to cross-examine the witness. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964). Where the parties and issues in the prior proceeding'; are not the same as in the proceeding where the deceased witness' testimony is sought to be introduced, the trial court is vested with discretion as to the admission of the previous testimony. State v. Nagel. 98 Idaho 129, 559 P.2d 308 (1977).

Collateral References. 29 Am. Jur. 2d, Evidence, § 738 et seq.

31A C.J.S., Evidence, § 384 et seq.

CHAPTER 3

PUBLIC WRITINGS

SECTION. 9·321. Public record of private writing

­ How proved. 9-322. Entries in public and official books - Effect as prima facie evi· dence. 9-323. Transcript of docket ofjustice of another state

- Admissibility. 9·324. Proof of transcript

- Certificate of justice and clerk - Proof of judgmentbyjustice in person. 9·325. Certified copies of writings. 9·326. Certificate ofpurchase or location of lands - Effect as evidence

.. 9·327. Entries by officers - Effect as evi· dence. 9-328. Photographed, microphotographed or filmed records

- Destruction of originals authorized. 9·329. Photographed records - Effect as records. 9·330. Microphotographing of instruments for records. 9-331. County officials replacing documents or books - Manner. 9-332. Destruction of originals when not less than one year old. 9-333. Admissibility in evidence of copies of destroyed records. 9-334. Copies ofrecords to be in duplicateOne copy for display purposes, the other placed in fireproof vault. 9-303.

9-304.

9·305.

9-306. 9·307.

9·308.

9-309.

9·310. 9·311. 9-312. 9-313.

9·314.

9·315. 9·316. 9·317.

9-318.

9-319.

9-320. SECTION. 9-301, 9-302. [Repealed.] Statutes

- Classification

- Public

or private. Proofof Statutes Act - Publications covered. Proof of Statutes Act - Uniformity of interpretation. Proof of Statutes Act - Short title. Certified copies of foreign laws and writings

- Admissibility. Oral evidence of common law - Reporta of decisions. Recitals in statutes

- Conclusiveness, Judicial record defined. Public writings

- Classification. Authentication ofjudicial record. Authentication of judicial record of foreign country. Compared copy of foreign record - Admissibility in evidence. Proof of other official documents. Official Reporta as Evidence Act. Official reporta as evidence - Notice before trial. Official reporta as evidence - Crossexamination. Official reports as evidence - Uniformity of interpretation of act. Official reporta as evidence

- Short title of act.

-**~":::-""'_.--:~~=r_~_~>** "_**~.~** _ 

### .'

# • •

9-301

# •

EVIDENCE 644

SECTION. SECTION. 9-335. Exemptions from disclosure - Confidentiality. 9·336. Evidence from preliminary hearing- Admission - Requirements. 9-337. Definitions. 9-338. Public records - Right to examine. 9·339. Response to request for examination of public records. 9-340. Records exempt from disclosure. 9-341. Exempt and nonexempt public records to be separated. 9·342. Access to records aboutan individual by an individual. 9-343. Proceedings to enforce rightto examine or to receive a copy of records -'- Retention of disputed records. 9-344: Order of the court - Court costs and attorney fees. 9·345. Additional penalty. 9·346. Immunity. 9-347. Agency guidelines. 9-348. Severability.

9-301. Public writings

- Rightto inspectandtakecopy. [Repealed.]

Co".'piler's notes. This section. which**~as** repealed by S.L. 1990, ch. 213, § 2, effeccomprised C.C.P. 1881, § 902, RS., R.C., & tive July 1, 1990. C.L., § 5965; C.S., § 7940; i.C.A., § 16-301,

9-302. Furnishing of certified copy

- Duty·of officer having custody

- Copy as evidence

- Fees. [Repealed.]

. C0",lpiler's notes. This section, which was repealed by S.L. 1990, ch. 213, § 2, effeccomprised C.C.P. 1881, § 903, RS., R.C., & tive July 1, 1990. . C.L., § 5966; C.S., § 7941; I.C.A., § 16-302,

9-303..**Stat~tes** - Classification

- Public or private.

- Statutes

arepublic or**p~l~ate.** A private statute is one which concerns only certain designated**In~lv~duals,** and affects only theirprivate rights. All other stat**ute~** are public, In which are included statutes creating or affecting corporations, fC.C.P. 1881, § 904; R.S., R.C. & C.L. § 5967' C S § 7942' I C A § 16-303.]
, , , .. ,. , . . .,

Sec. 10 sec. ref. This chapter is referred to in §§ 1-2103, 2·210, 6·1001, 6·1008, 6-1010, 15-5-602, 16·1513, 16-1623, 16-1811, 16·1816, 19-1112, 20-213A, 20-609, 22-1215, 22·1313, 23-515, 25-2727, 26·1111, 26·1112, 26-2224, 28·46·106, 28·46·304, 30-1450 31-874, 31·A3502, 33·518,36-2114, 37-334f. 37·2743, 38-712, 39·111, 39-257, 39-259A, 39-270, 39-606, 39-610, 39·1210, 39·1310, 39-1393,39-4411,39-4412,39·5211,39·5303, 39·5305, 39·5403, 39·5818, 39-6208, 40-2004, 41·227, 41·272, 41·902, 41-904, 41-1049, 41·1440,41-3311,41·3802,41·3811,41-4312, 42·4010, 47-319, 47-1314, 47-1506, 47-1515, 48·612, 48·801,' 49·321, 49-1311, 49·1313, 49·1314, 54-204, 54-918, 54·1210, 54·1806A, 54-1820,54·1837,54·1913,54·2052,54-3404, 56·221, 56-231, 57·112, 57·133B, 57·911 58·126, 58-1005, 59-1325A, 66·348, 67.2726: 67-2743E, 67-4708, 67·5009, 67·5768, 67-7410,67·7421,67·7436,67·7437,67-7441,

. 67·7445, 69·250, 69-515, 72·603, 72-926, 72-1007, 72·1342, 72·1374. ANALVSIS General law defined. Special law defined. What are judicial records.
General Law Defined.

A gener".l law is one framed in general terms restricted to no locality and operating upon all alike. Mix v, Board of Comm'rs 18 Idaho 695, 112 P. 215, 32 L.RA. (n s ) '534 (1910).

. .

In determ.ining whether or not a law is general or special, the court will look to its substance and necessary operation as well as to Its form and phraseology. Mix v. Board of Comm'rs, 18 Idaho 695, 112 P. 215, 32 L.RA. (n.s.) 534 (1910).

A**~tatute** is.general if its terms apply to and Its ,ProvIsIOns operate upon all persons and subject-matters in like situations. Jones
v, Power Co., 27 Idaho 656, 150 P. 35 (1915). Special Law Defined.

A .special I.aw is one that applies only to a special locality or to an individual, or to a 9-304 PUBLIC WRITINGS

minutes, orders, decree, judgment,judgment number ofindividuals selected out of a class to which they belong. Mix v. Board of Comm'rs, 18 Idaho 695, 112 P. 215,32 L.RA. (n.s.) 534 (1910).

What are Judiclal Records.

In broad sense, register of actions, files,

9.304. Proof of Statutes Act

­ book, and docket are "judicial records." Evans

v. District Court, 50 Idaho 60, 293 P. 323 (1930).

Collateral References. 30 Am. Jur. 2d, Evidence, § 969.

32 C.J.S., Evidence, § 663 et seq.

Publications covered.

- Printed books or pamphlets purporting on their face to be the session or other statutes of any of the United States, or the territories thereof, or of any foreign jurisdiction, and to have been printed and publishedby the authority of any such state, territory or foreign jurisdiction or proved to be commonly recognized in its courts, shall be received in the courts ofthis state

as prima facie evidence of such statutes. [1935, ch. 149, § 1, p. 367.]

Cited in: State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. API" 1982).

ANALYSIS
Effect of section. Necessity of pleading and proof. Presumption as to foreign law. Sufficiency of proof.

Effect of Section.

The latestofficial edition of the Napoleonic Code in French, together with the last English translation of the French Civil Code, were properly admitted in evidence under this section. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968). Necessity of Pleading and Proof.

The Supreme Court can not takejudicial notice of laws of sister state. They must be proved as prescribed by this section. Cummings v. Lowe, 52 Idaho 1, 10 P.2d 1059 (1932); Mason v, Pelkes, 57 Idaho 10, 59 P.2d 1087 (1936).

In a divorce proceeding by wife in Idaho filed subsequent to an interlocutory judgment of divorce in favor of the husband in California, the contention of the husband that because of the peculiar California statutory law and construction. of the California courts an interlocutory judgment of divorce in California was final could not be sustained, where the husband neither pleaded nor proved the California law, hence Idaho law controlled. Newell v. Newell, 77 Idaho 355,293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L.. Ed. 2d 76 (1956). Presumption as to Foreign Law.

In absence of proof to the contrary, court will assume that the same law prevails in a sister state as that which prevails here. Moore v. Pooley, 17 Idaho 57, 104 P. 898 (1909); Maloney v. Winston Bros. Co., 18 Idaho 740, III P. 1080, 47 L.RA. (n.s.) 634 (1910); Mason v. Pelkes, 57 Idaho 10,59 P.2d 1087 (1936), cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1937). Sufficiency of Proof.

When a party to an action requests thatthe trial court notice the statutory law of a sister state, the trial court shall have the authority to ascertain that law and proof of a sister state's statutory law may. be achieved by introducing a semi-official compilation of that law. White v. White, 94 Idaho 26, 480 P.2d 872 (1971).

DECISIONS UNDER PRIOR LAW

Effect of Section.

Bookspublished under authority of a state, territory or foreign country and purporting to contain the statutes, code or other writtenlaw thereof, or proved to be commonly admitted in their respective tribunals are admissible in Idaho as evidence of such law. Moore v. Pooley, 17 Idaho 57, 104 P. 898 (1909). Collateral References. 30 Am. Jur. 2d, Evidence, §§ 970, 971.

32 C.J.S., Evidence, § 667. Determination of question relating to foreign law as one of law or of fact. 34 A.L.R 1447; 68 A.L.R 809.



### .....**~-** .. -".,--,.,

... ""."9-338 EVIDENCE 658

3. That at the preliminary hearing, the party against whom the admis­ sion of the testimony is sought had an adequate opportunity to prepare and cross-examine the proffered testimony. [I.C., § 9-336, as added by 1989, ch. 51, § 2, p. 63.J

Legislative Intent. Section 1 of S.L. 1989, ofpreviously recorded testimony of a prelimi­ ch. 51 read: "The legislature is aware of the nary hearing should be admissible under the case of State v. Elisondo, 114 Idaho 412, 757 safeguards contained within section 9-336, P.2d 675 (1988), which overrules the earlier Idaho Code. The legislature finds that it is case ofState v. Mee, 102 Idaho 474, 632 P.2d against public policy to adopt a per se rule 633 (1981l. In the Elisondo case the court held that the admission of the preliminary excluding preliminary hearing testimony hearing testimony of an unavailable witness from a subsequent criminal proceeding. The in the subsequent criminal trial violates the legislature finds that such an exclusion pro­ public policy of the state of Idaho. It is the vi!l.s an incentive to a criminal defendant to legislature of the state of Idaho that declares take steps to prevent a witness from testify. what the public policy of the state shall be. In ing at trial. It is the policy of the state that examining those considerations, it is the all relevant and admissible evidence should opinion of the legislature that the admission be usable in criminal proceedings."

9-337. Definitions. - As used in sections 9-337 through 9-347, Idaho Code:

(1) "Copy" means transcribing by handwriting, photocopying, duplicating machine and reproducing by any other means so long as the public record is not altered or damaged.

(2) "Custodian"means the person having personal custody and control of the public records in question. If no such designation is made by the public agency, then custodian means any public official having custody of, control of, or authorized access to public records and includes all delegates of such officials, employees or representatives.

(3) "Inspect" means the right to listen, view and make notes of public records as long as the public record is not altered or damaged.

(4) "Investigatory record" means information with respect to an identifi­ able person, group ofpersons or entitiescompiled by a public agency pursu­ ant to its statutory authority in the course of investigating a specific act, omission, failure to act, or other conduct which the public agency has regu­ latory authority or law enforcement authority over.

(5) "Law enforcement agency" means any state or local agency given law enforcement powers or which has authority to investigate, enforce, prosecuteor punish violations ofstate or federal criminal statutes, ordinancesor regulations.

(6) "Local agency" means a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency thereof, or any committee of a local agency, or any combination thereof.

(7) "Person" means any natural person, corporation, partnership, firm, association, joint venture, state or local agency or any other recognized legal entity.

(8) "Public agency" means any state or local agency as defined in this section.

(9) "Public official" means any state, county, local district or governmental official or employee, whether elected, appointed or hired.

.';.

. --:

### .. 659 PUBLIC WRITINGS 

# •

(10) "Public record" includes, but is not limited to, any writing containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.

(11) "State agency" means every state officer, department, div!sion,

## ?U­

reau commission and board or any committee of a state agency including

### thos~ in the legislative or judicial branch, except the state

### militi~ ..

(12) "Writing" includes, but is not limited to, handwriting,**type~ltl~g,** printing, photostating, photographing and every means**o~ re~ordmg,**  meluding letters, words, pictures, sounds or symbols or combma.tlOnthereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums or other documents. [I.C., § 9-337, as added by 1990, ch. 213, § 1, p. 480.]

Sec. to sec. ref. This section is referred to in § 9·340.

9-338. Public records

- Right to examine. - (1)Everyperson has a rightto examine andtake a copy of any publicrecord ofthisstate andthere is a presumption that all public records. in Idaho are open .at all reasonable times for inspection except as otherwise expressly provided by statute.

(2) The rightto copy publicrecords shall include the right**t~** makephotographs or photographic or other copies while the records .are In the**posse~­** sion of the custodian ofthe records using equipmentprovided by the public agency or using equipment designated by the custodian.

.

(3) Additionally, the custodian of any public record shall give**:h~** person,
on demand a certified copy of it ifthe record is of a nature permitting such copying or'shall furnish reasonable opportunity to inspect or copy such record.

.

(4) The custodian shall make no inquiry ofany person who applies for a public record, except that the person may be required to make a written request and provide a mailing address**a~d** telephon

### 7**~umber.**

(5) The custodian shall not review, examme or scrutinize any copy. photograph or memoranda in the possession of any**s~ch** person and**sha~l** extend to the person all reasonable comfort and facility for the full exercise of the right granted under this act. "

.

(6) Nothinghereincontainedshallpreventthe**c~stodlan** from**~aIntam** ing such vigilance as is required to prevent alteration of any public record



### .. while it is being examined.

.. . (7) Examination of public records under the. authority of this section mustbe conducted duringregular office or working hours unless the custodian shall authorized examination ofrecords in otherthanregular office or workinghours. In this event, thepersons d.esignated to representthe**cu~to** dianduring such examination shall be entitledto reasonable compensation to be paid to them by the public agency having custody ofsuch records, out of funds provided in advance by the person examining such records, at other than regular office or working hours..

.

(8) A public agency or public official may establish a copymg fee. schedule. The fee may not exceed the actual cost to the agency of copying the

# •

9-339 EVIDENCE 660

record if another fee is not otherwise provided by law. The actual cost shall not include any administrative or labor costs resulting from locating and providing a copy of the public record. For providing a duplicate of a computer tape, computer disc, microfilm or similar or analogous record system containingpublic record information, a public agency or public official may charge a fee, uniform to all persons that does not exceed the sum of the following:

(a) The agency's direct cost of copying the.information in that form; (b) The standardcost, ifany, for selling the same information in the form of a publication. The custodian may require advance payment of the cost of copying. Any money received by the public agency shall be credited to the account for which the expensebeingreimbursed was or will be charged, and such funds may be expended by the agency as part of its appropriation from that fund.

(9) A public agency shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.

(10) Nothing contained herein shall prevent a public agency from disclosing statistical information thatis not descriptive of an identifiable person or persons. [I.C., § 9-338, as added by 1990, ch. 213, § 1, p. 480.]

9-339. Response to request for examination of public records.

­ (1)A public agency shall eithergrantor deny a person's requestto examine or copy public records within three (3) working days of the date of the receipt of the request for examination or copying. If it is determined by employees of the public agency that a longer period of time is needed to locate or retrieve the public records, the public agency shall so notify in writing the person requesting to examine or copy the records and shall provide the public records to the person no laterthanten (10) workingdays following the person's request.

(2) Ifthe public agency fails to respond, the request shall be deemed to be denied within ten (10) working days following the request.

(3) If the public agency denies the person's request for examination or copying the public records or denies in part and grants in part the person's request for examination and copying of the public records, the person legally responsible for administering the public agency or that person's designee shall notify the person in writing ofthe denial or partial denial of the request for the public record.

(4) The notice ofdenial or partial denial shall state that the attorney for the public agency has reviewed the request or shall state that the public agency has had an opportunity to consult with an attorney regarding the request for examination or copying of a record and has chosen not to do so. The notice of denial or partial denial also shall indicate the statutory authority for the denial and indicate clearly the person's right to appeal the denial or partial denial and the time periods for doing so. [I.C., § 9-339, as added by 1990, ch. 213, § 1, p. 480.]

9-340. Records exemptfrom disclosure.- The following records are exempt from disclosure: 

# • ---_._-_.--­

661 PUBLIC WRITINGS 9-340

(1) Any public record exempt from disclosure by federal or state law or federal regulations to the extent specifically provided for by such law or regulation.

(2) Trade secrets including those contained in response to public agency requests for proposal, requests for clarification, requests for information and similarrequests. "Trade secrets" as used in this section mean information, including a formula, pattern, compilation, program, computer program, device, method, technique or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclo­

sure or use; and (b) Is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. (3) Records, maps or otherrecords identifying the location ofarchaeological or geophysical sites or endangered species, if not already known to the general public.

(4) Archaeological and geologic records concerning exploratory drilling, logging, miningand otherexcavation, when suchrecords are required to be filed by statute for the time provided by statute.

(5) Production records, sale or purchase records, catch records, mortgage portfolio loan documents, or similarbusiness records of a privateconcern or enterprise required by law to be submitted to or inspected by a public agency. Nothing in this subsection shall limitthe use whichcanbe made of such information for regulatory purposes or its admissibility in any enforcement proceeding.

(6) Records relating to the appraisal ofreal property, timber, or mineral rights prior to its acquisition, sale or lease by a public agency.

(7) Any estimate prepared by a public agency that details the cost of a publicprojectuntil such time as disclosed or bids areopened, or upon award of the contract for construction of the public project.

(8) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose of assisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho.

.

(9) The records of a library which, when examined alone, or when exam­ ined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library.

(10) The material of a library, museum or archive which has been con­ tributed by a private person, to the extentofany limitation that is a condi­ tion of the contribution.

(11) Records of a personal nature as follows: (a) Records of personal debt filed with a public agency pursuant to law; (b) Personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; (c) Records of ownership of financial obligations and instruments of a public agency, such as bonds, compiled by the public agency pursuant to ; law; 

# i'

! 

## I9-340

# •

EVIDENCE 662
(d) Records, with regard to the ownership of, or security interests in registered public obligations;
, (e) Vital statistics records. (12) Test questions, scoring keys, and other data used to administer a licensingexamination, employment, academicor otherexaminationor testing procedure before the examination is given ifthe examination is to be used.**~gain: Record~**  establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure

are included in this exemption, to the extent that disclosure would create a risk that the result might be affected.

(13) Retired employees' and retired public officials' home addresses home telephone numbers and otherfinancial and nonfinancial membership**record~;** active employee financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by retirement system staff, funding agents and**~ustodians** concerning the investment of assets of the public employee retirement system ofIdaho are not considered confidential under this chapter.

(14) Any personal records, ot?er than names and addresses, such as parentage, race, religion, sex, height, weight, tax identification and social**secu~ity** numbers, financial worth or medical condition submitted to any public**age~cy** pursuant to a statutory requirement for licensing, certification, permit or bonding.

(15) Unless otherwise provided by agency rule, information obtained as part of an inquiry into a person's fitness to be granted or retain a license certificate, permit, privilege, commission or position. '

(16) Com?uter programs developed or purchased by or for any public agency for I.ts**o~** use.**~s** used in this subsection, "computer program"

means a senes of tnstructions or statements which permit the functioning of a computer system in a manner designed to provide storage retrieval and manipulation of data from the computer system, and any associated documentation and source material that explain how to operate the computer program. Computer program does not include:

(a) The original data including, but not limited to, numbers, text, voice, graphics and images; (b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or (c) The mathematical or statistical formulas that would be used ifthe manipulated forms of the original data were to be produced manually. (17) Records that identify the method by which the Idaho state tax commission selects tax returns for audit review.

(18) Information in an income or other tax return measured by items of income or sales, which is gathered by a public agency for the purpose of administering the tax.

(19) Information and records submitted to the Idaho state lottery for the performance of background investigations of employees, lottery retailers and major procurement contractors; audit records of lottery retailers vendors and major procurement contractors submitted to or performed by the 9-340 PUBLIC WRITINGS 663

Idaho state lottery; validation and security tests of the state lottery for lottery games; business records and information submitted pursuant to sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such documents and information obtained and held for the purposes of lottery security and investigative action as determined by lottery rules unless the public interest in disclosure substantially outweighs the private need for protection from public disclosure.

.

(20) Employment security information and unemployment**msura~ce** benefit information, except that all interested parties may agree to waive : I iI'
,

# . the exemption. ; II

(21) Examination, operating or condition reports and all docume.nts re­ jl lating thereto, prepared by or supplied to any public agency**re~ponslble** for the regulation or supervision of financial institutions including, but**n~t** 

### ii limited to, banks, savings and loan associations, regulated lend.ers, bUSI­ I'
ness and industrial development corporations, credit unions, and Insurance 

# " companies, or for the regulation or supervision ofthe issuance of**securiti~s.** 

# II

., (22) Investigatory records of a law enforcement agency, as**~efined** In !I section 9-337(5), Idaho Code, under the conditions setforth in section 9-335, Idaho Code. ;I

(23) Records of a personal nature related directly or indirectly to the application for and provision of statutory services rendered to**perso~s** ap­ 

# il
plying for public care for the elderly, indigent, or**mentall~** or physically : I handicapped, or participation in an environmental or a public health study.

(24) Records ofinvestigations prepared by the department ofhealth and welfare pursuant to its statutory responsibilities dealing with the ?rotec­

. tion ofchildren, the rehabilitation ofyouth, adoptions and the commitment \1 of mentally iII persons. i:

:

. (25) Records of the department of health and welfare or a**p~blic** health district that identifies a person infected with a reportable**dls~as~.**

(26) Records ofhospital care, medical records,**recor~s** of**Psyc?la~r~c** car,e
or treatmentandprofessional counselingrecords relating to anindividual s condition, diagnosis, care or treatment.

.

(27) Records of a person maintained pursuant to chapter 18, title 16, Idaho Code.

(28) Shipping and marketing records ofcommodity commissions used to evaluate marketing and advertising strategies.

.

(29) Records contained in court files ofjudicial proceedings, the disclo­

sure ofwhich is prohibitedby or underrules adopted by the Idaho supreme court, but only to the extent that confidentiality is**provide~ u~~er**  suc? rules, and any drafts or other working memoranda related tojudicial decision making.

. I :

(30) Records consisting of draft legislation and**docu~ents speclfica~ly**  

### "! I related to such draft legislation or research requests submittedto the legislative council by a member of the Idaho legislature for the purpose of . I placing such draft legislation into.a form suitable for introduction as offi­ 1 cial proposed legislation of the legIslature of the state of Idaho, unless the individual legislator having submitted or requested such records or re­ ;9-343 9-340 EVIDENCE 664 

# •

search agrees to waive the provisions of confidentiality provided by this subsection.

(31) All papers, physical and electronic records and correspondence or other supportingmaterials comprisingthe work papers in the possession of the office ofthe legislative auditor prior to release ofthe related final audit and all other records or materials in the possession of the office of the legislative auditor that would otherwise be confidential or exempt from disclosure.

. (32) The records, finding, determinations and decision of any prelitigation screenmg panel formed under chapter 10, title 6, Idaho Code.

(33) Board ofprofessional discipline reprimands by informal admonition pursuant to subsection (6)(0 of section 54-1806A, Idaho Code.

(34) Records including, but not limited to, investigative reports, resulting from investigations conducted into complaints of discrimination made
to the Idaho human rights commission unless the public interest in allowing inspection and copying ofsuch records outweighs the legitimate public

or private interest in maintaining confidentiality ofsuch records. A person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. The confidentiality of this subsection will no longer apply to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination.

(35) Information, records, including names and addresses of victims, or investigationsofthe department ofcorrection or the commission ofpardons and parole to the extent that disclosure thereofwould interefere [interfere] with the secure and orderly conduct oftheir operations, or the rehabilitation of any person in the custody of the department of correction or on parole, or would substantially prejudice or prevent the carrying out of the functions ofthe department ofcorrection or the commission ofpardons and parole if the public interest in confidentiality clearly outweighs the public interest in disclosure.

(36) Except as provided in this subsection, all personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relating to a public employee or applicant, including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing and scoringmaterials, grievances, correspondence andperformance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment. [I.C., § 9-340, as added by 1990, ch. 213, § 1, p. 480.] PUBLIC WRITINGS 

# •

665

Compiler's notes. The bracketed word "interfere" in subsection (35) was inserted by the compiler.

9-341. Exempt and nonexempt public records to be separated.

­ If any public record contains material which**i~** not exempt from**~isclosure** as well as material which is exempt from disclosure, the public agency shall, upon receipt of a request for disclosure,**sep~rate t~e**  exempt and nonexempt material and makethe nonexempt material availablefor**e~a~­** inationl.] provided that a denial of a request to copy nonexempt material In
a public record shall notbe based upon the fact that such**nonexe~pt** material is contained in the same public record as the exempt material. [I.C., § 9-341, as added by 1990, ch. 213, § 1, p. 480.]

Compiler's notes. The bracketed comma
was inserted by the compiler.

9-342. Access to records about an individual by an individual.

­ (1) A person may inspect and copy therecords of a public agency**p~rta~ning** to that person, even if the record is otherwise exempt from public disclosure.

(2) An individual may request in writing an amendment of any record pertainingto thatperson. Within ten (10) days ofthereceipt ofthe request, the public agency shall either:

. .. .

(a) Make any correction of any portion ofthe record which the individual establishes is not accurate, relevant, or complete; or (b) Inform the individual in writing of the refusal to amend**i~ a~cor**  dance with the request and the reasons for the refusal, and indicate clearly the person's right to appeal the refusal and the time period for doing so. The procedures for appealing a refusal to amend shall be the

same as those set forth in sections 9-343 and 9-344, Idaho Code, and the
court may award reasonable costs and attorney fees to the prevailing party or parties, if it finds that the request for amendment or refusal to amend was frivolously pursued. (3) The right to inspect and amendrecords pertainingto oneselfdoes not include the right to review otherwise exempt**investi~atory r~cords** **~f** a public agency ifthe investigation is ongoing, inform.atlOn**t~at.ls** compIled in reasonable anticipation of a civil action or proceedingwhich ISnot otherwise discoverable or the informationrelatesto adoption records or information which is otherwise exemptfrom disclosure by statute. [I.C., § 9-342, as

.added by 1990, ch. 213, § 1, p. 480.]

9-343. Proceedings to enforce right to examine or to receive a copy ofrecords

_ Retention ofdisputed records.

- (1) !he sole**~em** edy for a person aggrieved by the denial of a request for disclosure IS to instituteproceedings in the districtcourtofthecountywhere therecords or
some part thereof are located, to compel the public agency. to make th.e information available for public inspection in accordance WIth the provisions ofthis act. The petition contesting the public agency's decision shall9-401

EVIDENCE 666

be filed within one hundred eighty (180) calendar days from the date of mailing of the notice of denial or partial denial by the public agency. The time for responsive pleadings andfor hearings in suchproceedings shall be set by the court atthe earliestpossible time, or in no eventbeyond twentyeight (28) calendar days from the date of filing.

(2) The public agency shall keep all documents or records in question until the end ofthe appeal period, until a decision has been rendered on the petition, or as otherwise statutorily provided, whichever is longer. [I.C., § 9-343, as added by 1990, ch. 213, § 1, p. 480.]

Sec. to sec. ref. This section is referred to in § 9-342.

9-344. Order of the court

- Court costs and attorney fees.

- (1) Wheneverit appears thatcertainpublic records arebeingimproperly withheld from a member of the public, the court shall order the public official charged with withholding the records to disclose the public record or show

cause why he should not do so. The courtshall decide the case after examining the pleadings filed by the parties and such oral arguments and additional evidence as the court may allow. The court may examine the record in camera in its discretion.

(2) Ifthe court finds thatthepublic official's decision to refuse disclosure is not justified, it shall order the public official to make the requested disclosure. If the court determines that the public official wasjustified in refusing to make the requestedrecord available, he shall returnthe item to the public official without disclosing its content and shall enter an order supporting the decision refusing disclosure. In any such action, the court shall award reasonable costs and attorney fees to the prevailing party or parties, ifit finds that the request or refusal to provide records was frivolously pursued. [I.C., § 9-344, as added by 1990, ch. 213, § 1, p. 480.]

Sec. to sec. ref. This section is referred to in § 9-340.

9-345. Additional penalty. - If the court finds that a public official has deliberately and in bad faith improperly refused a legitimate request for inspection or copying, a civil penalty shall be assessed against the public official in an amount not to exceed one thousand dollars ($1,000), which shaH be paid into the general account. [I.C., § 9-345, as added by 1990, ch. 213, § 1, p. 480.)

9-346. Immunity. - No public agency, public official, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record governed by theprovisions ofthis chapter ifthe public agency, public official or custodian acted in good faith in attempting to comply with the provisions ofthis chapter. [I.C., § 9-346, as added by 1990, ch, 213, § 1, p. 480.] PRIVATE WRITINGS 

# •

667 

### . r s By January 1 1991, every state agency

# sh~i~~opt~i~~~~~a~~~~t~t**t~:a:n:;:~:;,bjt~: ~:~~:i~~~l~::~~~**  records kept or mamtame Y ts [I C § 9-347 as added by 1990, ch. physical location of such documen . . ., ' 213, § 1, p. 480.)

. . The rovisions ofthis actareherebydeclaredto

9-348. Severability.- . f thi act or the application of such be severable and if any pr?VlSIOn 0 . sdeclared invalid for any reason,

., t person or eircumstance IS . f thi prOVISIOn 0 any ff th Iidity ofremaining portIOns 0 IS such declaration shall not a ect e va I 1 480 ] § 9-348 as added by 1990, ch. 213, § ,p.

. [I C act. .., '
Section III of S.L. 1990, ch, 213 provided

Compiler's notes. Section 2 of S.L. 1990 

### J that §§ 1 and 2 of the act should take effect h 213 repealed §§ 9·301, 9-302, an July 1, 1990.**~9~1009,** and § 3 of S.L. 1990, ch. 213 is com­ piled as § 1-2103.

CHAPTER 4

PRIVATE WRITINGS

SECTION. SECTION. 9-412. Exemplar.

. 9-401. Public and private seals.

. 9-413. Business Records as EVidence Act9-402. Historical works

-**B~ks** of sCience Tenn defined. or art _ Published**~eps** or 9-414. Business records

- When competent charts - Effect as eVidence. evidence. 9-403. Notice to produce writing

- Proof 9-415. Business records - Unifonnity ?fin­ upon failure to produce ­ terpretation of act. When notice not necessary· 9-416. Business records - Short title of act. Writing need not be introduced. 9-404. 9-417. Admissibility of reproduced records Proof of writings.

. Denial by subscribing witness ­ 9-405. in evidence. 9·406. Proof by other evidence.

. 9-418. Interpretation. 9-407. Evidence of admission of execution. 9-419. Short title. 9-408. Entries made by decedent - When 9-420. Proof of hospital medical charts or records by certified copy and admissible.

. . 9-409. Acknowledgment ofprivate wntmgs. compliance with subpoena 9-410. Instruments affecting realty - Cer­ duces tecum for production tified copies of record - Ad­ thereof.

. missibility.

. . 9-421. Taken or converted merchandise

­ 9-411. Secondary evidence of wntmgs

­ Evidence. When admissible.

't'

. rivate seals. _ A public seal in this state**~s** a**~.** 

# .. 9-401. .Public. and p ublic officer with an instrumentproVlded stamp or ImpreSSIOn, made**~Y** a n official or public document, upon the by law, to attest the executIOn**~:ched** to the paper, which is capable of paper or upon .any .substan.ce a rivate seal may be made in the same receiving a visible ImpressIOn·.t P b made by the scroll of a pen, or by

mannerby any**inst~ent~** or I :ar :ture ofthe writer. A scroll or other writingtheword "seal agamstt s gnor forei country, andthere recog­ sign made in anotherstate or

### te~~:>' thi

### sta~ [C.C.P. 1881, § 922; R.S., nized as a seal, mustbe so regar e In s . 1 ) R.C., & C.L., § 5989; C.S., § 7960; I.C.A., § 16-40 .

# • • •

....:.. j

"-" 

# 1991

'. ,',,---'. 

# POCKET SUPPLEMENT 

# (

, .. -.... ;.. 

# IDAHO CODE

Compiled Under the Supervision ofthe Idaho Code Commission

PHILLIP M. BARBER B. NEWAL SQUYRES, JR. M. ALLYN DINGEL JR COMMISSIONERS ' .

MAX M. SHEILS, JR. EXECUTIVE SECRETARY

VOLUME 2

'.

# .

. . ' :': ': ..**'~'** " : '..'... ." .

## .... ......



# .,..",:'**,.::~ .-~~'-~;Q:~~';>** **;::-:~-:~~.:-~':~**

# ..**~<?;:** .

# .;~~<**~~:~::? :~:'** 

# . t'

# ~:-y:/:;:_:~_;q:**.~~i:,ri;'i{L~~::~:~~:,~:~~~f:~!~t~~~~f:,~**

."

. "

, '.;

.**~_.** : .:","

,.' .....'**..~** .. ', ....

"':'-", ......**':.-;~**...**,-.~** 

### ... For your convenience in reporting any errors in these supplementsorsuggestedimprovementsoradditionsyouwillfind postpaid cards in the back of the 1991 Replacement Index Volumes.

Place this supplement in the pocket ofthe corresponding volume ofthe set 

# I COPYRIGHT © 1991

All Rights Reserved

By

THE MICHIE COMPANY
LawPublishers

CHARLOTTESVILLE, VIRGINIA

# • •

PUBLISHER'S NOTE ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE

Amendments to laws and new laws enacted since the publication of the bound volume down to and including the 1991 regularsession are compiled Year 1991 Adjournment Date March 30, 1991
in this supplement and will be found under their appropriate section numbers.

The supplement contains annotations for the Idaho Code based on decisions of the state and federal courts. The annotations are derived from the following sources:

Pacific Reporter 2nd Series through Volume 804, p. 688. Federal Supplement through Volume 754, p. 89l. Federal Reporter 2nd Series through Volume 924, p. 1067. United States Supreme Court Reports, Lawyers' Edition, 2nd Series through Volume 112, p. 865.

Bankruptcy Reporter through Volume 123, p. 466. Opinions of Attorney General 1983-1 through 1990-8. Section numbers printed in black face type either refer to sections ofthe original volume or to newacts not included therein.

Title and chapter analyses, in these supplements, carry only laws that have been amended or new laws. Old sections thathave nothing but annotations are not included in the analyses.

Following is an explanation ofthe abbreviations ofthe Court Rules used throughout the Idaho Code.

I.R.C.P. Idaho Rules of Civil Procedure I.R.E. Idaho Rules of Evidence I.C.R. Idaho Criminal Rules M.C.R. Misdemeanor Criminal Rules I.I.R. Idaho Infraction Rules I.J.R. Idaho Juvenile Rules I.C.A.R. Idaho Court Administrative Rules I.A.R. Idaho Appellate Rules

ALWAYS CONSULT THE LATEST SUPPLEMENT IN CONNECTION WITH THE PERMANENT VOLUME

iii

# • • •

USER'S GUIDE

In order to assist both the legal profession and the layman in obtaining the maximum benefit from the Idaho Code, a User's Guide has been included herein. This guide containscomments and information on the many features found within theIdaho Code intended to increase the usefulness of this setoflaws to the user. See Volume 1 ofthis set for the complete User's Guide.

'''--'.**'F·'''''-:F'>.:''~'_** ••••. v

# • ••

TITLE 9

EVIDENCE

CHAPrER. 3. PuBLIC WRITINGS, § 9-340.

CHAPTER 2

WITNESSES

9·202. Who may not testify.

Cited in: Capps v. Wood, 117 Idaho 614, per se unreliable, or presumptively unreli790 P.2d 395 (Ct. App. 1990). able, on the ground that the trial court found the child incompetentto testifyat trial. Idaho Children. v.Wright, 497 U.S. -t-, 110 S. Ct. 3139, 111 L.

Out-of-court statements by child who was Ed. 2d 638 (1990). an alleged victim of sexual abuse were not

9-203A. Confidential communications with accountants.

Cited in: Capps v. Wood, 117 Idaho 614, 790 P.2d 395 (Ct. App, 1990).

CHAPTER 3

PUBLIC WRITINGS

SECTION. 9·340. Records exempt from disclosure.

9·303. Statutes

- Classification

- Public or private.

Sec. to sec. ref. This chapter is referred to in §§ 54-934 and 67-5725.

9-311. Public writings

- Classification.

"Raw Notes" from Board Meetings. of County Commissioners during meetings of

Trial court erred in holding that as a mat­ the County Board of Commissioners, could ter of law, "raw notes" (lthandwritten notes," not be public writings. Fox v. Estep, 118 "raw minutes") taken by Clerk of the Board Idaho 454, 797 P.2d 854 (1990).

9·335. Exemptions from disclosure

- Confidentiality.

Cited in: Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347 (1990).

43 

# •9-340 PUBLIC WRITINGS 44 

# -45 • !l·337

# •

EVIDENCE

9-337. Definitions. (5) Production records, sale or purchase records, catch records, mortgage portfolio loan documents, or similarbusinessrecords of a private concern or Sec. to sec. ref. Sections 9-337 _ 9-347

are referred to in § 67-571lC.

9-338. Public records

- Right to examine.

DECISIONS UNDER PRIOR LAW

ANALYSIS Physical handling of document. Private photocopying of records. "Raw Notes" from board meetings. Physical Handling of Document.

Even if the public is entitled to know the contents of a document when it has been filed, this entitlement does not necessarily extend to the physical handling of the document; to allow physical handling of an original document before it becomes an official reco:d upon microfilming would carry a poPrivate Photocopying of Records. Titlecompany's desire to avoid increases in fees charged by the recorder does not outweigh the recorder's duty to protect the safety ofdocuments entrusted to his care nor does it diminish the recorder's power to 'control the orderly function of his office, and accordingly the recordercannotbe compelled to**~llow** private photocopying of public records

In the courthouse. Adams County Abstract Co. v. Fisk, 117 Idaho 513,788P.2d 1336 (Ct. App. 1990). enterprise required by law to be submitted to or inspected by a public agency. Nothingin this subsection shall limitthe use which canbe made of such information for regulatory purposes or its admissibility in any enforcement proceeding.

(6) Records relating to the appraisal ofreal property, timber, or mineral rights prior to its acquisition, sale or lease by a public agency.

(7) Any estimate prepared by a public agency that details the cost of a publicproject until suchtime as disclosed or bids are opened, or upon award of the contract for construction of the public project. (8) Records gathered by a local agency or the Idaho department of commerce, as described in chapter 47, title 67, Idaho Code, for the specific purpose ofassisting a person to locate, maintain, invest in, or expand business operations in the state of Idaho.

(9) The records of a library which, when examined alone, or when examined with other public records, would reveal the identity of the library patron checking out, requesting, or using an item from a library. tential for abuse, because if the document

were altered or damaged, the public record wOl;lld**~e** affected; moreover, private rights or 

# i I f f r 

# I

, f (10) The material of a library, museum or archive which has been contributed by a private person, to the extent ofany limitation that is a condition of the contribution.

(11) Records of a personal nature as follows: (a) Records of personal debt filed with a public agency pursuant to law; (b) Personal bank records compiled by a public depositor for the purpose of public funds transactions conducted pursuant to law; (c) Records of ownership of financial obligations and instruments of a public agency, such as bonds, compiled by the public agency pursuant to law;**"Ra~** Notes" from Board Meetings. Trial court erred in holding that as a matter of law "raw notes" ("handwritten notes" obligations could be put in doubt if an original**docu~ent** were altered or damaged after "raw minutes") taken by Clerk of the Board It was microfilmed but before it was returned ofCounty Commissioners during meetings of
to the proper party. Adams County Abstract the County Board of Commissioners, could Co. v. Fisk, 117 Idaho 513, 788 P.2d 1336 (Ct. not be public writings. Fox v . Estep, 118 App. 1990). Idaho 454, 797 P.2d 854 (990).

9-340.**Rec~rds** exemptfrom disclosure. - The following records are exempt from dJsclosure:

(1) Any

### publ~c record exempt from disclosure by federal or state law or federal.regulatIons to the extent specifically provided for by such law or regulation,

(2) Trade secrets including those contained in response to public agency**reque.st~** for proposal, requests for clarification, requests for information a.ndsl.mllar !equests. "Trade secrets" as used in this section mean information,**mclu~mg** a formula, pattern, compilation, program, computer program,device, method, technique or process that:

(a). Derives independent economic value, actual or potential, from not bemg generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure or use; and (b) Is

### ~he subject of efforts that are reasonable under the circumstances to maintain Its secrecy. . (3) Records,

### ~aps.or other records identifying the location of archaeological or**geoph~slcal** sites or endangered species, ifnot already known to the general public,

(4?

### Arch.a~ological and geologic records concerning exploratory drilling, logging, mmmgand otherexcavation, when such records are required to be filed by statute for the time provided by statute. (d) Records, with regard to the ownership of, or security interests in, registered public obligations; (e) Vital statistics records. (12) Test questions, scoring keys, and other data used to administer a licensingexamination, employment, academic or otherexaminationor testing procedure before the examination is given if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure

are included in this exemption, to the extent that disclosure would create a risk that the result might be affected.

(13) Retired employees' and retired public officials' home addresses, hometelephone numbers and otherfinancial and nonfinancial membership records; active and inactive member financial and membership records and mortgage portfolio loan documents maintained by the public employee retirement system. Financial statements prepared by retirement system staff, funding agents and custodians concerningthe investmentof assets of the public employee retirement system of Idaho are not considered confidential under this chapter.

(14) Any personal records, other than names and addresses, such as parentage, race, religion, sex, height, weight, tax identification and social9-340 • 

# ,.. • EVIDENCE 46 I 47 PUBLIC WRITINGS 9-340 secu:ity numbers, financial worth or medical condition su

. public agency pursuant to a statutory requirement for li

### b~Itted**t~** any tion, permit or bonding. icensmg, certifica- 

# I

(5) Unless otherwise provided b a I'

. Part of . . . y gency ru e, InfOnnatlOn obtained as 

## I
an inquiry Into a person's fitness to b d '. certificate permit "1 "e grants or retain a license

, , privi ege, commISSIon or position ' 

# I

I (16)

### Com~uter programs developed or purchased 

# b or fo ' agency for Its own use. As used i thi b ' / r any public " n IS su section, computer p " means a series ofInstructions or statements which permit th f**ro~a,m** of a computer system in a manner desi . e unctioning' 

# I

and manipulation of data from th gnetd to provido storage, retrieval I

e compu er system and ' documentation and source material that I' h' any assocIated 

# I

puter

### progr~~. Computer program does e::

### ~~~lu~:: to operate the com­ t 

## I (a) The original data including, but not limited t b ' graphics and images; 0, num ers, text, VOIce, (b) Analysis, compilation and other manipulated forms of th
., I data produced by use of the program; or e ongIna (c)

### ~he mathematical or statistical fonnulas that would be d if h mampulated forms of the original data were to be d duse 1 t e**.(1~)** Records that identify the method by which the**I~roh** uce manually, mISSIOn selects tax returns fior audit rsvt a 0 state tax com­ 1 review,

, (8) Infonnation in an income or other tax ret ' Income or sales, which is gathered b bli urn measured by Items of administering the tax. y a pu 1C agency for the purpose of

(19) Infonnation and records submitted to the Idaho state lott f performance of background investigations of e I ery or the and major

### p~ocurement contractors; audit

### recor::;Po~~~;:~;~~~1retailers dors and major procurement contractor bmi ai ers, ven- 

# j**:d~ho** state

## lottery~ validation and

## sec::i~y**~:~~:d o~o** **t~re P:t~~~:t~ebryy**  tfihe

o ery games; business records and inform t" or sections 67-7412(8) and (9) and 67-7421(8)

### a~~~~)**s~~:Itted** pursuant to

### docUl~ents**a~d** information obtained and held for 'the Code, and such 

# I**secu:lt~** and Investigative action as determined by lott/

### rp~ses**o~** lottery pubhc**~nterest** in disclosure substantially outweighs thry eStun esds the protection from public disclosure, e prrva e nee for 

# !

(20)**~mployment** security infonnation and un em 10

. benefit mformation, except that all itt d ' P yment Insurance the exemption. n eres e partIes may agree to waive

### lai~l~**t~xa~ination,** operating or condition reports and all documents re

# ~::i;:rL::~oo~**;e~~~;~~i~~ S~r~l~::~~a~~~~~~~~o~~e~:~~~~~;n~~~e** **:~i** d " dan**~,** savings and loan associations, regulated**lend~rs** bu .
ness an. In ustnal development corporations, credit unions and' ' SIcompanies, or for the regulation or supervision ofth' ce of**Insu~a~ce**

(22) Investigatory records of a law enfo e Issuance 0 securities. section 9-337(5) Idaho Code underth d:tc.ement agency, as defined in Idaho Code.' , e con 1 IOnssetforth in section 9-335, 

# j (23) Records of a personal nature related directly or indirectly to the application for and provision of statutory services rendered to persons applying for public care for the elderly, indigent, or mentally or physically handicapped, or participation in an environmental or a publichealth study,

(24) Records of investigations prepared by the department of health and welfare pursuant to its statutory responsibilities dealing with the protection ofchildren, the rehabilitation ofyouth, adoptions and the commitment of mentally ill persons,

(25) Records of the department of health and welfare or a public health district that identifies a person infected with a reportable disease.

(26) Records ofhospital care, medical records, records ofpsychiatric care
or treatment and professional counselingrecords relatingto an individual's condition, diagnosis, care or treatment.

(27) Records of a person maintained pursuant to chapter 18, title 16, Idaho Code.

(28) Shipping and marketing records of commodity commissions used to evaluate marketing and advertising strategies.

(29) Records contained in court files ofjudicial proceedings, the disclosure ofwhich is prohibited by or underrules adopted by the Idaho supreme court, but only to the extent that confidentiality is provided under such rules, and any drafts or other working memoranda related tojudicial decision making.

(30) Records consisting of draft legislation and documents specifically related to such draft legislation or research requests submitted to the legislative council by a member of the Idaho legislature for the purpose of placing such draft legislation into a form suitable for introduction as official proposed legislation of the legislature of the state of Idaho, unless the individual legislator having submitted or requested such records or research agrees to waive the provisions of confidentiality provided by this subsection.

(31) All papers, physical and electronic records and correspondence or other supporting materials comprisingthe work papers in the possession of the office ofthe legislative auditor priorto release oftherelated final audit and all other records or materials in the possession of the office of the legislative auditor that would otherwise be confidential or exempt from disclosure. (32) The records, finding, determinations and decision of any prelitigation screening panel formed under chapter 10, title 6, Idaho Code.

(33) Board of professional discipline reprimands by informal admonition pursuant to subsection (6)(t) of section 54-1806A, Idaho Code. (34) Records including, but not limited to, investigative reports, resulting from investigations conducted into complaints of discrimination made
to the Idaho human rights commission unless the public interest in allowing inspection and copying ofsuch records outweighs the legitimate public

orprivate interest in maintaining confidentiality ofsuch records. A person may inspect and copy documents from an investigative file to which he or she is a named party if such documents are not otherwise prohibited from disclosure by federal law or regulation or state law. The confidentiality of3-1603

48

this suAion will no longer apply to any record used in any judicial**proceed~rought** by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination.

(35) Information, records, including names and addresses of victims, or investigations ofthe departmentofcorrection or the commission ofpardons and parole to the extent that disclosure thereof would interfere with the

secure and orderly conduct of their operations, or the rehabilitation of any person in the custody ofthe department ofcorrection or on parole, or would substantially prejudice or prevent the carrying out of the functions of the department of correction or the commission of pardons and parole if the public interest in confidentiality clearly outweighs the public interest in disclosure.

(36) Except as provided in this subsection, all personnel records of a current or former public official other than the public official's public service or employment history, classification, pay grade and step, longevity, gross salary and salary history, status, workplace and employing agency. All other personnel information relatingto a public employee or applicant, including, but not limited to, information regarding sex, race, marital status, birth date, home address and telephone number, applications, testing andscoringmaterials, grievances, correspondence andperformance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. A public official or authorized representative may inspect and copy his personnel records, except for material used to screen and test for employment. 

### [I.e., § 9-340, as added by 1990, ch. 213, § 1, p. 480; am. 1991, ch. 61, § 7, p. 140.)

Compiler's notes. Section 6 of S.L. 1991, amended by § 16 of S.L. 1991, ch. 329 proch. 61 is compiled as § 59-1353. vided that §§ I, 2, 46 and 47 of the act who

Section 111 of S.L. 1990, ch. 213 as should take effect July 1, 1990.

CHAPTER 5

INDISPENSABLE EVIDENCE - STATUTE OF FRAUDS

9·505. Certain agreements to be in writing.

Performance Within One Year. jury on the statute of frauds defense. Burton

Where an alleged oral contract of employ­ v. Atomic Workers Fed. Credit Union, 119 ment could not be performed within 1 year, Idaho 17, 803 P.2d 518 (1990). the trial court should have instructed the FEES AND MILEAGE OF WITNESSES 49
CHAPTER 6

PRODUCTION OF ALTERED WRITINGS

# •

Explanation of alterations.

. 9-601. I F d Credit Union Pocatello R.R. Emp oyees e 791 P 2d 1318 Admissibility of Writing. v. Galloway, 117 Idaho 739, .

This section allows admission of a**~ocu** (Ct. App. 1990). ment if the alteration can be explained.
CHAPTER 16

FEES AND MILEAGE OF WITNESSES

9-1603. Interpreters' fees. hi tion provides by wife, was improper as t IS**s~c** id out of Improper Charging of Party. ith that interpreter's fees are to e**~al** 117

Trial court's order charging husband WI the county treasury. Jones v. ones, the costs of translating documents In**th~** Idaho 621, 790 P.2d 914 (1990). Spanishlanguage and submitted to the cou



# I