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, VIRGINIA 
COPYRIGHT © 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contained therein have been amended or repealed and many new laws have 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entirely repealed and replaced in 1985 and parallel reference tables have 

been inserted preceding Title 40 which indicate where the subject matter of 

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 

safety and highways and bridges. 

This replacement volume contains laws enacted by the Idaho legislature 

through the 1985 regular session and annotations of cases interpreting the 

Idaho Code from the following sources: 

Pacific Reporter 2nd Series through Volume 694, p. 1133. 

Federal Supplement through Volume 601, p. 1037. 

Federal Reporter 2nd Series through Volume 754, p. 394. 

United States Supreme Court Reports,' Lawyers' Edition, 2nd Series 

through Volume 83, p. 985. 

West's Bankruptcy Reporter through Volume 46, p. 246. 

Following is an explanation of the abbreviations of the Court Rules used 

throughout the Idaho Code. 

I.R.C.P. Idaho Rules of Civil Procedure 

I.C.R. Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

I.J.R. Idaho Juvenile Rules 

I.A.R. Idaho Appellate Rules 

LC.A.R. Idaho Court Administrative Rules 

I.I.R. Idaho Infraction Rules 

I.R.E. Idaho Rules of Evidence 

: ' , " 

{

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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 of the session at which the same 

shall have been passed, except in case of emergency, which emergency shall 

be declared in the preamble or in the body of the law." .~.

;~. Section 67-510 Idaho Code provides: "No act shall take effect until July 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 of emergency, which emergency shall be declared in the 

preamble or body of the law. -v 

~§: Every joint resolution, unless a different time is prescribed therein, takes 

effect from its passage." 

This table is given in order that the effective date of acts, not carrying an 

emergency or which do not specify an effective date, may be determined 

with a minimum of delay. 

Year 

1921 : 

1923 

1925 

1927 

1929 

1931 

1931 (E. S.) 

1933 

1933 (E. S.) 

1935 

1935 (Ist E. 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 

March 8, 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 (Ist E. S.)
 

1946 (2nd E. S.)
 

1947
 

1949
 

1950 (E. S.)
 

1951
 

1952 (Lst E. S.)
 

March 1, 1944 

March 4, 1944 

March 9, 1945 

............ .......... ...... .... ........ ..... March 7, 1946 

March 7,1946 

March 7,1947 

March 4, 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 (Ist E. S.) August 4, 1961 

1963 March 19, 1963 

1964 (E. S.) August 1, 1964 

1965 .....:.......................................................... March 18,'1965 

1965 (Ist E. 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.) February 9, 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 .. March 21, 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,II

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e 

299 HAZARDOUS WASTE MANAGEl\IENT 39-4402 

CHAPTER 44
 

HAZARDOUS WASTE MANAGEMENT
 

SECTION. SECTION. 

39-4401. Short title. 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. 

Consistency with 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 government notice. 39-4407. Identification of hazardous wastes. 39-4419. Interstate cooperation. 39-4408. Unauthorized treatment, storage, "I 39-4420. Employment security. 

"'I!

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,

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release, or disposal of hazard­ 39-4421. Goodsamaritan protection. 

39-4422. Severability. 

39-4426. Appointment of health inspectors. 

39-4427. Hazardous waste disposal fee. 

39-4428: Collection offees - Returns. 

39-4429. Books and records to be preserved 

ous waste prohibited. 

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 - Monitordepartment of health and wel­ ing. fare. 

Additions and penalties. 

39·4412. Inspections - Right of entry.
 

39-4413. Enforcement procedures. 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 Management Act 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 

the State of Idaho finds: 

(a) That continuing technological progress, increases in manufacturing, 

and the abatement of air and water pollution have resulted in everincreasing quantities of hazardous waste; " 

(b) That the public health and safety', and the environment, are 

threatened when hazardous wastes are not managed in an environmentally sound manner; 

(c) That the knowledge and technology necessary for alleviating adverse 

health, environmental and aesthetic impacts resulting from current 

1 hazardous waste management and disposal practices are generally

available; and 

(d) That the problem of proper management of hazardous waste has 

become a matter of great statewide concern. 

(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 management of hazardous waste; 

(
 
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	 and disposal; 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 'i i	 see Compiler's notes, § 39-440l. waste disposal facilities of state or local
 

II
 Collateral References. Validity and con­
 governmental entities. 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\ 

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:I 

! 39-4403. Definitions. - As used in this chapter: 

:i (1) "Board" means the Idaho board of health and welfare. !I (2) "Commercial hazardous waste facility or site" means any hazardous 

;1 waste facility whose primary business is the treatment, storage or disposal, 

iI for a fee or other consideration, of hazardous waste generated offsite by 

\! generators other than the owner and operator of the facility. 

11 (3) "Department" means the Idaho department of health and welfare. :1 

lj	 (4) "Director" means the director of the Idaho department of health and· 

n welfare or the director's authorized agent. 

11 (5) "Disposal" means the discharge, deposit, injection, dumping, spilling, i 

\1 leaking or placing of any hazardous waste into or on any land or water so

!	 that such hazardous waste or· any constituent thereof may enter the 

environment or be emitted into 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) "Hazardous waste" means a waste or combination of wastes of a solid, 

liquid, semisolid, or contained gaseous form which, because of its 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 

improperly treated, stored, disposed of, or managed. Such wastes 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 

domestic sewage, or solid or dissolved materials in irrigation return flows 

or industrial discharges which are point sources subject to national 

pollution discharge elimination system permits under the 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 

Energy Act of 1954, as amended, 42 U.S.C., Section 2011 et seq. 

(8) "Hazardous waste management" means the systematic control of the 

collection, source separation, storage, treatment, transportation, processing, and disposal of hazardous wastes. 
i 

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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 of hazardous wastes. 

(10) "Manifest" means a form used for identifying the quantity, composition, origin, routing, waste identification coders), and destination of 

hazardous waste during any transportation from the point of generation to 

the point of treatment, storage or 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 

subject of rights and duties. 

(12) "RCRA" means the Resource Conservation and Recovery Act of 

1976 as amended in 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 

constitute disposal of such hazardous wastes. 

(14) "Transportation" means the movement of any hazardous waste to or 

from a hazardous waste facility or site. 

(15) "Transporter" means any person who transports a hazardous waste 

to or from a hazardous waste facility or site. 

(16) "Treatment" means any method, technique,or process, including 

neutralization, which is designed not to be an integral part of a production 

process, but which is rather designed to change the physical, chemical, or 

biological character or composition of any hazardous waste prior to storage 

or final disposal so.as to neutralize such waste or so as to render such waste 

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) of this 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 of Idaho enact and carry out a hazardous waste program that 

will enable the state to assume primacy over hazardous waste control from 

the federal 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 of the regulations which have been or will be established under 

RCRA. However, by the provisions of this chapter, the legislature desires to 

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 other materials under study by 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 under this 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 

board rules or regulations to do anything more than follow the instructions 

.j 

it on 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 or regulation that would 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", 
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303 HAZARDOUS WASTE MANAGEMENT 39-4407 

52, title 67, Idaho Code, the board shall adopt such rules and regulations 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 of this 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 

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 

of transportation, for containerization, labeling and manifesting of hazardous 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; 

(5) Lists of those wastes or combinations of wastes which are not 

compatible and which may not be stored or disposed of together; 

(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 e. and sites. [LC., § 39-4405, as added by 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 and publish studies of hazardous waste management in 

this state; 

(3) Shall develop, publish, and revise as necessary a plan for 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 

implied from the other sections of this chapter. [LC., § 39-4406, as added by 

1983, ch. 154, § 1, p. 416.] 

39-4407. Identification of hazardous wastes. - (1) The board shall 

establish criteria for determining if any waste or combination of wastes is 

hazardous or nonhazardous, for the purposes of this chapter. Any waste 
39-4408 HEALTH AND SAFETY 304 

which meets the hazardous waste criteria established by the board shall be 

considered a hazardous waste regardless of whether or not it is included by 

the board in a list of hazardous 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 

constituent thereof, may enter the environment, unless the department has 

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

activity involved or exempted the activity from 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 permit from the department. The owner or operator of the facility 

or site rather than the builder shall be responsible for obtaining the permit. 

The board may exempt classes or categories of hazardous waste treatment, 

storage, or disposal facilities from the permit requirement if the 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 issued by the United 

States environmental protection agency prior to the date that the state 

program is authorized by the administrator of that agency shall be adopted 

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

permit until the department issues a new state permit. 

(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 

the facilities 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 of interests in the real property committed to that facility or site; 

(d) Monetary assurances in such form and amount as are necessary for . 

effective management, maintenance, and monitoring of the facilities and 

sites during and after operation; 

.1 
305 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 

pursuant to the RCRA; 

CO Emergency equipment and emergency response plans appropriate to 

the facilities and sites; 

(g) Public participation In the permitting process consistent with 42 

U.S.C. section 6974(b). 

(3) Permits shall be issued for a period not to exceed ten (10) years or the 

maximum period allowed under RCRA, whichever is greater: Permits 

issued to hazardous waste facilities and sites by the department prior to 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 promulgated under this chapter. 

(4) Any permit issued under this section may be revoked by the director, 

pursuant to the provisions of section 39-4413, Idaho Code, if the permitted 

party fails to comply with the terms and conditions of the permit, this 

chapter, or the rules and regulations promulgated under this chapter. 

(5) The department may issue a variance from the requirements of the 

rules and regulations promulgated under this section, if, in the judgment of 

the director, application of the requirements would cause unreasonable 

hardship and the granting of 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 of hazardous 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 of hazardous waste. The rules and regulations shall be 

consistent with the rules and regulations issued by the United States 

department of transportation 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 .: 

consistency would d 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 the 
39-4410 HEALTH AND SAFETY 306 

state's hazardous waste management program. Rules and regulations so 

promulgated by the board shall prevail over conflicting rules and regulations of the commission. 

(2) The hazardous waste transportation rules and regulations shall apply 

to all transporters of federally regulated types and quantities of hazardous 

waste generated either by themselves or by others. These rules and 

regulations shall apply to any movement 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 of hazardous wastes; 

(b) Standards for the handling and placarding of hazardous waste 

shipments; 

(c) A hazardous waste tracking system requiring that: 

(i) All transporters of federal regulated types and quantities of 

hazardous 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. shipped off site or received from off site be 

accompanied by a manifest or similar form describing the hazardous 

waste being shipped and its destination; 

(iii) A copy of each manifest or similar form be returned to 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) The owner or operator of a motor vehicle or trailer transporting on 

the highways or public roads of this 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 of hazardous 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 

permit may be in the form of a single trip permit issued pursuant to section 

49-125A, Idaho Code, but shall not be in lieu of any other permits or 

registration required pursuant to title 49, Idaho Code. All moneys collected 

'pursuant to this section by the Idaho transportation department shall be 

remitted to the state treasurer for 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 department 
307 HAZARDOUS WASTE MANAGEMENT 39-4411 

and certified quarterly by the state auditor, shall be transferred l'rom the 

account to the Idaho transportation department. 

(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 of hazardous 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 Cross ref. Motor Carrier Act, §§ 61-801­

· i 61-818. 

· I 

c i 39-4411. Records - Reporting - Monitoring. - (1) Pursuant to the 

provisions of section 39-4405, Idaho Code, the board shall adopt, and amend 

as necessary, such rules and regulations relating to records, reporting, and 

monitoring as may be 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;

:I (b) The submittal of records and reports; 

I (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 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 required by the regulations issued pursuant to subsection (1) 

of this section shall be 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 the 
39-4412 HEALTH AND SAFETY 308 

disclosure of information by the department to any officer, employee, or 

authorized representative of the 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 necessary to safeguard the public interest.
 iI
 

II (4) Each 'generator shall, at the discretion of the director, no later than
 H thirty (30) days after the end of each calendar quarter submit a written 

report to the department including the following information: II (a) The types and quantities of hazardous wastes generated; 

!I (b) The types and quantities of such wastes shipped for treatment and I 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 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 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 of hazardous wastes generated in this 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 most recent reporting period and the 

types and quantities of hazardous waste generated outside this state and 

shipped into this state for 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 of this 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 public health or environmental emergency. '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, at any reasonable time:
 

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

are or have been generated, transported, treated, stored, or disposed ofto
 

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 of conveyance where hazardous wastes are or have been contained
 

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 of hazardous wastes exist
 

to inspect and copy such documents.
 

(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 if the request­


ing party agrees to have the samples analyzed and to share the. results of
 

the analysis with the department.
 

(4) The right of entry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability of the 

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 not interfere 

unreasonably with the development of information by the department or 

the transmission of information from the contractor to the department or 

the United States environmental protection 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 . ;;~ mines that any person is in violation of any provision of this chapter or any 

permit, standard, regulation, condition, requirement, compliance agreement or order issued or promulgated pursuant to this chapter, the dirctor
 I

may commence one or more of the following: }~. : !;,',

(1) ADMINISTRATIVE ACTIONS. , (a) Departmental Negotiated 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 written response within fifteen (15) days. 

2. Scheduling Compliance Conference. If a recipient of a notice of 

violation contacts the department within fifteen (15) days of the time 

the recipient received the notice, the recipient shall be entitled to a 

compliance conference. The conference shall be held within twenty (20) 

days of the date the notice was delivered to the recipient, unless a later 

date is agreed to. The conference shall be held during normal working 

hours at the local field office of the department's division of environment located closest to the recipient's place of business or at any other 

date, time and location mutually agreeable to the recipient and the 

department. 

3. ·Compliance Conference. The compliance conference shall provide 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 account created by section 39-4417, Idaho Code. 

4. Effect of Compliance Agreement. A compliance agreement shall be 

effective immediately upon its being signed. If a party does not comply 

with the terms of the compliance agreement the director may seek and 

obtain in any appropriate district court specific performance of the 

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

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

circumstances. 

, (b) Permit Suspension 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 

permitted party commits a violation of the law or a permit which: 

(i) Creates or has created a substantial threat to the public health or 

to the environment; or 

(ii) Is repetitious of prior violations of the same or different 

provisions of the law; or 

(iii) Is allowed to continue or is not corrected within thirty (30) days 

of a notice of violation. 

I

I
 
311	 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 of Hearing. The director may 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 

	 party offacts or conduct which warrant suspension or revocation of the 

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) 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. 

3. Administrative Hearing Provisions. 

(i) Upon a timely request by a permit holder for a hearing to 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 apply to all hearings conducted under this subsection. .t

., 1 (ii) The director shall have the authority to request from the district

-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 of witnesses and the production before the '­

~:)

1	 director of papers, books, drawings, documents, test results, and 

other evidence relevant to a permit suspension or revocation ·~t· ..i .... , investigation or adjudication.
 

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

-1 J'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 not be required to initiate or 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 of this 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 ought 
39-4414 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 and nonexclusive. 

(1) MONETARY PENALTIES. 

(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 of this 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 continuing violation. 

(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 each day of a continuing violation. 

(c) The imposition or computation of monetary penalties may take into 

account the seriousness of the violation and good faith efforts to comply 

with the law. 

(2) ASSESSMENT OF COSTS. Any person who violates this chapter or 

any permit, standard, regulation, condition, requirement, compliance 

agreement, or order issuedor promulgated pursuant to this chapter may be 

assessed for: 

(a) The state's costs for any nonroutine investigations, inspections, 

monitoring, or surveys which lead to evidence of the violation; 

(b) The state's costs, including the reasonable value· of attorneys' 

services, for preparing and litigating the 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 contaminated property; 

(e) Compensation for damages to publicly held resources including but 

not limited to, land, water, recreational uses, wildlife, fish and aquatic 

life to restore the resource to its highest previous 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 of trial preparation and trial of the 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 of trial 

preparation and trial of the case; 
.. ','> •..•.•...• •.... .' '. •. .... .•...• ..,':'..' ; 

8 

I 

! 

I 313 HAZARDOUS WASTE MANAGEMENT 39-4416 

(h) The imposition or computation of costs may take into account the 

seriousness of the violation and good faith efforts to comply with the law. 

(3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF. 

(a) Any person who violates any provision of this chapter or any permit, 

standard, regulation, condition, requirement, compliance agreement, or 

order issued or promulgated pursuant to 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 department need not allege or prove at any stage of 

the proceeding that long term irreparable damage will occur should the 

injunction or order not be issued or that the remedy at law is inadequate. 

(b) A receiver may be appointed to oversee or operate any hazardous 

waste facility or site which is established 'or operated in violation of this 

chapter or any standard, regulation, condition, requirement, compliance 

agreement, or order issued or promulgated pursuant to 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 used for the purpose of complying with the provisions of this 

chapter shall 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 of a 

continuing violation. 

.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 imprisonment not to exceed one (1) year, or 

to both, for each separate violation or for each day of a continuing violation. 

(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 

. and prosecute 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

, not less than one thousand dollars ($1,000). 

(2) No action may be commenced under subsection (1) of this 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) of this section 

unless' the plaintiff has given the department sixty (60) days' notice and 

substantial evidence of the violation upon which the citizens' action is 

based. However, if the department commences an action in a court of the 

state of Idaho, any interested person may intervene as provided in rule 

24(a) of the Idaho Rules of Civil Procedure. 

(3) In any action under this section, the department may intervene as a 

matter of right. 

(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 

state has become 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 treasury to 

be designated the hazardous waste emergency account. 

(2) The account shall consist of moneys appropriated to the account by' 

the legislature, moneys allotted to the account as a result of departmental 

compliance proceedings, moneys allotted to the account in a court ordered 

award or judgment, moneys allotted to the account in a court approved 

settlement, and moneys contributed to the account from other sources. 

(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 

the environment caused by that emergency. 

(4) The board may promulgate regulations for the withdrawal and use of 

funds from the account as specified in subsection (3) of this section. 

(5) All moneys placed in the account are hereby perpetually appropriated to the department for the purposes described in subsection (3) of this 

section. All expenditures from the account shall be paid out in warrants 

drawn by the state auditor upon presentation of the proper 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 added by 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 and monitoring account. 

(2) The account shall consist of: 

(a) Moneys appropriated to the account; 

. (b) Moneys as provided in sections 39-4410 and 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, collect or dispose of hazardous 

wastes; 

(b) Employment of or contracting with necessary personnel to analyze, 

monitor, contain, collect or dispose of hazardous wastes; or 

(c) Employment of individuals or contracting with individuals or corporations to respond throughout the state to health and environmental 

problems which may be caused by hazardous waste emergencies or 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 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 added by 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 added by 1983, ch. 154, § 1, p. 416.] 

39-4419. Interstate cooperation. - The director shall have the power 

and the duty to encourage cooperative activities between the department 

and other states for the improved management of hazardous 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 enforcement or administration of the provisions of this chapter. 

(2) Any employer who knowingly violates the provisions of subsection (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, cleaning up, or disposing of or in attempting to prevent, clean 

up or dispose of any such leakage, seepage or other release, shall be subject 

to civil liabilities or penalties of any type. 

(2) The immunities provided in subsection (1) of this section above shall 

not apply to any person: 

(a) Whose act or omission caused in whole or in part such actual or 

threatened leakage, seepage or other release and who would otherwise be 

liable therefor; or 

(b) Who receives compensation other than reimbursement for out-ofpocket expenses for services in rendering such assistance or 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 added by 1983, ch. 154, § 1, p. 416.] 

39-4422. Severability. - The provisions of this act are hereby declared 

to be severable and if any provision of this act or the application of such 

provision to any person or circumstance is declared invalid for any reason, 

such declaration shall not affect the validity of remaining portions of this. 

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. Appointment of health inspectors. - (1) The department of 

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 of the department of health and welfare designated in 

subsection (1) of this section shall be agents of the Idaho' transportation 

department and the public utilities commission for the purpose of collecting 

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 of the 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) of this 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.brought for violations of the provisions of this chapter or rules 

and regulations promulgated pursuant thereto shall be brought as provided 

for in this chapter. All actions brought for violations of the provisions of 

title 61, Idaho Code, or of title 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 after July 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 of twenty dollars ($20.00) per ton, or fraction thereof, on all materials 

disposed of at the facility or site. [I.C., § 39-4427, as added by 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 

waste facility or site and remittance shall be 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 the fifteenth day of the month, shall make out a 

return, upon such forms setting forth such information as the department 

may require, showing the amount of the fee for which the owner or operator 
39-4429 HEALTH AND SAFETY 318 

of the 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 remittance for such amount in the form required. 

(2) The department may relieve any person or class of persons 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 accurate records, including itemized invoices 

and manifests for federally regulated types and quantities of hazardous 

waste ultimately disposed of at a hazardous waste facility or site in Idaho. 

All books, documents and papers, computer tapes, discs, and other records 

required to be kept by this section shall be preserved for a period of at least 

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 of this 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 of sections 39-4427 

and 39-4428, Idaho Code, are being fully complied with. Trade secret 

information obtained by the department under the provisions of this section 

shall be treated in the same 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 

under this chapter. [I.C., § 39-4430, as added by 1984, ch. 205, § 8, p. 502.] 

I 

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319 HAZARDOUS WASTE MANAGEMENT 39-4432

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 

exist or as they may subsequently be amended, shall apply and be 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 

hazardous waste disposal fee liens and proceedings. 

(2) The department of health and welfare maybe made a party 

defendant in any action at law or in equity by 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 of Idaho shall be responsible for 

any final judgment secured against the department of health and welfare 

and said judgment shall be paid or satisfied out of the hazardous waste 

"disposal fee refund account. [I.C., § 39-4431, as added by 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 

treasurer by the department to be distributed as 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 of ten 

thousand dollars ($10,000) or at such greater sum as in the opinion ofthe 

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 

than quarterly, to the hazardous waste training, emergency and monitoring account created in section 39-4417B, Idaho Code. [I.C., § 39-4432, as 

added by 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 of the 

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 in reporting any errors in these sup: 

plements or suggested improvements or additions you will find 

postpaid cards in the back of the 1991 Replacement Index 

Volumes. . 

Place this supplement in the pocket of the corresponding 

volume of the set 

COPYRIGHT© 1986, 1987, 1988, 1989, 1990, 1991
 

All Rights Reserved
 

By
 

I THE MICHIE COMPANY 

Law Publishers 

CHARLOTIESVILLE, VIRGINIA 
PUBLISHER'S NOTE
 

Amendments to laws and new laws enacted since the publication of the 

bound volume down to and including the 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 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 of the 

. 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 nothing but annotations are not included in the analyses. 

Following is an explanation of the abbreviations of the Court Rules 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

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"'I:' '.~ • .. ;.~ ... 

'(; .. 

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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 chapter is 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 

waste facility whose primary business is the treatment, storage or disposal, 

for a fee or other consideration, of hazardous waste generated offsite 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 of the Idaho department of health 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 thereof may enter the environment or be emitted into 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) "Hazardous waste" means a waste or combination ofwastes of a solid, 

liquid, semisolid, or contained gaseous form which, because of its 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 

improperly treated, stored, disposed of, or managed. Such wastes 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 subject to national pollu, '.~.

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 of the :-S 

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

ing, 

(9) 

and 

"Hazardous 

disposal 

waste 

of hazardous 

facility or 

wastes.

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 identifying the quantity, composi·c 

tion, origin, routing, waste identification codets), and destination of hazard- . 

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' 

similar to that of the 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, or instrumentality, 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 Act of 

1976 as amended in 1978, 1980 and 1984. 

(15) "Restricted hazardous waste" means either of the following: 

(a) Any hazardous waste which contains any of the 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. 

concentrations greater than, or equal to, one thousand (1,000) parts per 

million. 

(ii) Liquid hazardous wastes containing any of the 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 parts per million 

Chromium (VI) ................•....................... 500 parts per million 

Lead. .......... .. .. .... .. . . .. .. .. .. .. .. .. .. .. .. .. .. .... .. 500 parts per million 

Mercury 20 parts per million 

Nickel 134 parts per million 

Selenium 100 parts per million 

Thallium 130 parts per million 
'.It -'I 

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" 

! 159 HAZARDOUS WASTE MANAGEMENT 39-4404 

(iii) Liquid hazardous wastes having a pH less than or equal to 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 restricted hazardous waste 

by the adoption of rules and regulations by the board, taking into account 

the hazardous wastes banned from land disposal by the V.S. environmental protection agency. 

(16) "Storage" means the containment of hazardous 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" means the movement of any 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 integral part of a production 

process, but which is rather designed to change the physical, chemical, or 

biological character or composition of any hazardous waste prior to storage 

or final disposal so as to neutralize such waste or so as to render such waste 

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. . 

(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 

that the state of Idaho enact and carry out a hazardous waste program that 

will enable the state to assume primacy over hazardous 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, and dispose of hazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of 

all of the regulations which have been or will be established under RCRA. 

However, by the provisions of this chapter, the legislature desires to avoid 
}~ .. 

39-4405 HEALTH AND SAFETY 1601 

\ 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 and the federal regulationS:~'

adopted by the administrator of the United States environmental protec:':i 

tion agency to implement RCRA. 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 spent potliners 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;;;~

anything more than follow the instructions on 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 that would impose conditions or requirements more stringent' . 

or broader in scope than RCRA and the RCRA regulations of the environ-is, 

mental protection agency. The board may, however, promulgate proceduralY 

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 of the environmental T 

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

flict 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, 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 

amended by two 1988 acts which appear to 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 of the 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. - Pursuant to the proce-";,:. 

dures established by the Idaho administrative procedures act, chapter 52,?~

title 67, Idaho Code, the board shall adopt such rules and regulations as are',~.,...........,
 

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

transportation, treatment, storage, and disposal of hazardous wastes 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" 

containing hazardous waste. The rules and regulations promulgated by the ,.. 

board shall be a part of this 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 

, of transportation, for containerization, labeling and manifesting of hazardous 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 of those wastes or combinations of wastes which are not compat­

:..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, prevention and correction regulations applicable to 

all owners and operators of underground 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's notes. Sections 1 and 3 of S.L.
 

1986, ch. 148 are compiled as §§ 39-4403 and
 

39-4408.
 

39·4408. Unauthorized treatment, storage, release, use or disposal 

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 

any constituent thereof, may enter the environment, unless the 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) Placement in the owner or operator's landfill will not present 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 of any hazardous waste prohibited from land disposal, unless.i~t . 

such storage is solely for the purpose of the accumulation of such 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 

without a permit from the department. The owner or operator of the facility ~:~:~

or site rather than the builder shall be responsible for obtaining the permit. ~?~I Permits may contain such conditions necessary to protect human health',J-i~

and environment. The board may exempt classes or categories of hazardous ">2.1:1 

waste treatment, storage, or disposal facilities from the permit requirementj 

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 ':,~.'

program is authorized by the administrator of that agency shall be adopted ·:,L~

by the department as a state granted interim status or as a state granted .,:,,~ ...,-Jipermit 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 of existing units and lateral expansions' of existing interim : .~~~

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

! ties; and -¥ 

'1

I (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 of interests 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 of the 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 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 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 shall be issued for a period not to 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 promulgated pursuant to it and improvements intechnology. Permits issued to 

hazardous waste facilities and sites by the department prior to the effective 

date of this chapter shall be reissued to conform with the provisions of this 

chapter and the rules and regulations promulgated under this chapter. 

(5) Any permit issued after the effective date of this provision shall require corrective action to be taken on-site and off-site for all releases of 

hazardous waste or constituents, from any solid waste management unit at 

the treatment, storage, or disposal facility seeking the permit, 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 permit issued under this section may be revoked by the director 

pursuant to the provisions of section 39-4413, Idaho Code, if the .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 and regulations promulgated under this section, if, in the judgment of 

the director, application of the requirements would cause unreasonable 

hardship and the granting of 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 be renewed or extended 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 and demonstration permit for any hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated. Any such permit shall include such terms 

and conditions as will assure protection of human health and the environment. Such permits shall: 

1. Provide for the construction of such facilities, as necessary, and for 

operation of the 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 of hazardous waste which the director deems necessary forpurposes of determining the efficiency and performance ca- .•~~

pabilities of the 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 regarding testing and providing of information to the director with respect to 

the operation of the facility. 

(b) The director may apply the criteria set forth in paragraph (a) of this ," 

subsection in establishing the conditions of each permit without 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 

and permit issuance requirements established in the general permit reg- .. 

ulations except that there may be no modification or waiver of regula-' ,, 

dons regarding financial responsibility (including insurance) or of applicable 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 apamended by two 1988 acts which appear to be peared in the law as enacted. 

compatible and have been compiled together. Section 5 of S.L. 1986, ch. 148 is compiled 

The amendment by 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 of hazardous 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 of hazardous waste. The rules and regulations shall be 

consistent with the rules and regulations issued by the United States department of transportation and the United States environmental protection 

agency. The rules and regulations shall also be consistent with the rules 

and regulations of the Idaho public utilities commission unless such 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 
-:.: 

~.'

:. 

" .. 

." 

165	 HAZARDOUS WASTE MANAGEMENT 39-4410 

commission and endeavor to develop mutually acceptable transportation 

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 the state's hazardous waste management program. Rules and regulations so promulgated 

by the board shall prevail over conflicting rules and regulations of the 

comrrussion. 

., (2) The hazardous waste transportation rules and regulations shall apply 

to all transporters of federally regulated types and quantities of hazardous 

waste generated either by themselves or by others. These rules and regulations 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 of hazardous wastes; 

;	 (b) Standards for the handling and placarding of hazardous waste shipments; 

(c) A hazardous waste tracking system requiring that: 

(i) All transporters of federally regulated types and quantities of hazardous 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 shipped off site or received from off site be accompanied by a manifest or similar form describing the hazardous waste 

being shipped and its destination; 

(iii) A copy of each manifest or similar form be returned to 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 of hazardous 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 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/Hazardous Waste Transemergency 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 enacted by Sec­ enacted by Section 4, of this act and Section tion 4 of this act shall be in full force and 49-2507, Idaho Code, which is enacted by 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 

Transportation Department that the act should become effective on and shall be authoafter January 1, 1989. rized to permit any person renewing or pur39-4411. 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 

relating to records, reporting, and monitoring as may be 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 

department as required by the regulations issued pursuant to subsection (1) 

of this section shall be unlawful. . 

(3) Information obtained by the department or by agents, contractors, or 

other representatives of the department, under any provisions of this chapter, 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 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 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 necessary to safeguard the public interest. 
167 HAZARDOUS WASTE MANAGEMENT 39-4411 

(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 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 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 of hazardous wastes generated in this state, the types and quantities 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 of hazardous waste generated outside this state and shipped into 

this state for storage or disposal. [I.C., § 39-4411, as added by 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 the following section, compiled as §§ 39-4409 and 39-4413. 

also numbered § 39-4411. 

39-4411. Records - Reporting - Monitoring [Effective July 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 

relating to records, reporting, and monitoring as may be 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 

(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 

department as required by the regulations issued pursuant to subsection (1) .' "." of this section shall be unlawful. -:

.~,

(3) Information obtained by the department or by agents, contractors,or·· -

.. 

other representatives of the department, under any provisions of this chap- ­

ter, shall be available to the public, unless the information, or parts 

thereof, if made public,would divulge methods, processes, or activities constituting trade secrets, in which case the information shall be subject to . 

disclosure according to chapter 3, title 9, Idaho Code. 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 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 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 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 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 of hazardous wastes generated in this 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 most recent reporting period and the types and 

quantities of hazardous waste generated outside this state and shipped into 

this stateforstorage or 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.] 

!

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.­ 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 under the authority of this 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 absence of either 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 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 of conveyance where hazardous wastes are or have been contained 

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 of hazardous wastes exist 

to inspect and copy such documents. 

(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 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 of the 

analysis with the department. 

(4) The right of entry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability of the 

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 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 of information 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 court judge is authorized to issue 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 of inspection. [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 of the 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 of any provision of this chapter orj 

any permit, standard, regulation, condition, requirement, compliance I 

agreement or order issued or promulgated pursuant 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 

written response may be required within fifteen (15) days of receipt of the 

notice of violation by the person to whom it is directed. 

(b) Scheduling Compliance Conference. If a recipient of a notice of violation 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 of the date of receipt of 

notice, unless a later date is agreed upon between the parties: Ifa 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 

opportunity for the recipient of a notice of violation to explain the circumstances 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 order formalizing 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 of the 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 pursuant to subsection (A)(1)(b) of this 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 director may revoke or temporarily suspend the permit 

of any 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 of Hearing. The director shall commence a permit suspension 

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

to suspend or revoke. The notice shall inform the permitted party of facts 

or conduct which warrant suspension or revocation of the 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 (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 

the director's action under subsection (A)(2)(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 shall apply to 

all hearings conducted under this subsection. 

(ii) The director shall have the authority to request from- the district 

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 attendance and testimony of witnesses and the production before the director of papers, 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 

any provision of this chapter or with any rule, regulation, permit or order 

promulgated hereunder, and for any relief or 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 

prosecuting attorney of the county where a civil enforcement action may 

arise, 

(B) ACTIONS AGAINST GUARANTORS. If the owner or operator is in 

bankruptcy, reorganization or other arrangement pursuant to the federal 

bankruptcy code, or where jurisdiction cannot be obtained over an owner or 

operator likely to be solvent at the time of judgment, an action may be 

brought directly against a guarantor of financial responsibility by the state 

or any injured party for any claim arising from conduct for which guarantees of financial 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 of this 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 ought 

reasonably to have had knowledge of the violation. [LC., § 39-4413, as 

added by 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) of this 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) There is hereby created an account in the dedicated fund 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 of individuals or contracting with individuals or corporations to respond throughout the state to health and environmental 

problems which may be caused by hazardous waste emergencies or 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 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 added by 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. Disposal of restricted hazardous wastes prohibited.:- (1) 

Notwithstanding any other provision oflaw to 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) of this section, if, in the judgment of the 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 of managing hazardous wastes in an appropriate 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 of treatment, if any, 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) If such restricted 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 which meets the requirements of this 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 of manifested 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. Appointment of health inspectors. - (1) The department of 

/	 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 hazardouswastes which have been transported by common carrier. 

(2) The employees of the department of health and welfare designated in 

subsection (1) of this section shall be agents of the Idaho transportation 

department and the public utilities commission for the purpose of collecting 

regulatory and registration fees pursuant to sections 61-811 and 61-812, 

Idaho Code, and for collecting fees and permits pursuant to chapter 4, 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 permits pursuant to 

section 49-22202 [49-2202], Idaho Code. All moneys collected by the department's employees as agents of the 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) of this 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 brought for violations of the provisions of this chapter or rules 

and regulations promulgated pursuant thereto shall be brought as, provided 

for in this chapter. All actions brought for violations of the provisions of 

title 61, Idaho Code, or of title 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...• 

• 

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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 and records to be preserved - Entry and inspection 

by department of health and welfare.. 

"Water" and "Chemical" Distinguished. water should not be considered to 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, and from 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 

than quarterly as follows: ninety-five percent (95%)shall be remitted to the 

hazardous waste training, emergency and monitoring account created in 

section 39-4417B, Idaho Code, and the remaining five percent (5%) shall be 

remitted to the county treasurer of the county or counties where theaetivity occurred which caused the fees to be assessed pursuant to this chapter. 

Moneys shall be apportioned to the counties in the 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 may be 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 or juror may 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 of the court to order the tri I to uc case It IS In the 

to take place before anotherjudge orjU~. [c.c:;~i~~~e~ o;O~~~~nd~dCant 

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 

WItnesses, witness. 54 A.L.R3d 100. §§ 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 hIS purported dying statement was inter. 

preted. by a Chinese interpreter and taken 

down m shorthand by a stenographer evid~nce of the fact that the interpreter was ad. 

dieted to the use of opium or other drugs was 

competent for the purpose of showing the 

ment~1 balance of such interpreter, and his 

capaci ty to remember the 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 state cannot be 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 or absent witnesses - 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 of justice of another state - Admissibility. 

9·324. Proof of transcript - Certificate of 

justice and clerk - Proof of 

judgment by justice in person. 

9·325. Certified copies of writings. 

9·326. Certificate of purchase 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 of records 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. 

Proof of 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 of judicial 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 about an individual 

by an individual. 

9-343. Proceedings to enforce right to 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 - Right to inspect and take copy. [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 

are public or p~l~ate. A private statute is one which concerns only certain 

designated In~lv~duals, and affects only their private rights. All other statute~ 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 of individuals 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 published by 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 of this 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 latest official 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 take judicial 

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 that the 

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. 

Books published under authority of a state, 

territory or foreign country and purporting to 

contain the statutes, code or other written 

law 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, of previously 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 of State 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 of persons or entities compiled 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, prosecute or punish violations of state or federal criminal statutes, ordinances or 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 

(10) "Public record" includes, 

PUBLIC WRITINGS 

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.tlOn thereof, 

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) Every person has a 

right to examine and take a copy of any public record of this state and there 

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 right to copy public records shall include the right t~ make photographs or photographic or other copies while the records .are In the posse~­

sion of the custodian of the records using equipment provided 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 if the 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 of any 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 telephon7 ~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) Nothing herein contained shall prevent the c~stodlan from ~aIntaming 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

must be conducted during regular office or working hours unless the custodian shall authorized examination of records in other than regular office or 

working hours. In this event, the persons d.esignated to represent the cu~todian during such examination shall be entitled to reasonable compensation 

to be paid to them by the public agency having custody of such 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 

containing public 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 standard cost, if any, 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 expense being reimbursed 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 that is 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 either grant or deny a person's request to 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 later than ten (10) working days 

following the person's request. 

(2) If the 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 of the denial or partial denial of 

the request for the public record. 

(4) The notice of denial 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 exempt from 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 similar requests. "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 other records identifying the location of archaeological or geophysical sites or endangered species, if not already known to the 

general public. 

(4) Archaeological and geologic records concerning exploratory drilling, 

logging, mining and other excavation, when such records 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 similar business records of a private concern or 

enterprise required by law to be submitted to or inspected by a public 

agency. Nothing in this subsection shall limit the use which can be 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 

public project until such time 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 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 extent of any 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' 

! 

I 
9-340 • 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 

licensing examination, employment, academic or other examination or testing procedure before the examination is given if the 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 other financial 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 of Idaho 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 if the 

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 

PUBLIC WRITINGS 9-340 663 

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 of the 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 set forth 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 of investigations prepared by the department of health and 

welfare pursuant to its statutory responsibilities dealing with the ?rotec­ . tion of children, the rehabilitation of youth, 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 of hospital care, medical records, recor~s of Psyc?la~r~c car,e 

or treatment and professional counseling records relating to 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 of judicial proceedings, the disclo­


sure of which is prohibited by or under rules 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 to judicial decision making. . I : 

(30) Records consisting of draft legislation and docu~ents speclfica~ly "!I related to such draft legislation or research requests submitted to 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 supporting materials comprising the work papers in the possession of 

the office of the legislative auditor prior to release of the 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 of professional 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 of such records outweighs the legitimate public 

or private interest in maintaining confidentiality of such 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 

investigations of the department of correction or the commission of pardons 

and parole to the extent that disclosure thereof would interefere [interfere] 

with the secure and orderly conduct of their 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 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 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 scoring materials, grievances, correspondence and performance 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.] 

665 PUBLIC WRITINGS 

•

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 make the nonexempt material available for e~a~­

inationl.] provided that a denial of a request to copy nonexempt material In 

a public record shall not be 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 the records 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 

pertaining to that person. Within ten (10) days of the receipt of the request, 

the public agency shall either: . .. . (a) Make any correction of any portion of the 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~cordance 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 amend records pertaining to oneself does not 

include the right to review otherwise exempt investi~atory r~cords ~f a 

public agency if the investigation is ongoing, inform.atlOn t~at.ls compIled 

in reasonable anticipation of a civil action or proceeding which ISnot otherwise discoverable or the information relates to adoption records or information which is otherwise exempt from 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 of records _ Retention of disputed records. - (1) !he sole ~emedy for a person aggrieved by the denial of a request for disclosure IS to 

institute proceedings in the district court of the county where the records 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 of this act. The petition contesting the public agency's decision shall 
9-401 

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 and for hearings in such proceedings shall be 

set by the court at the earliest possible time, or in no event beyond twentyeight (28) calendar days from the date of filing. 

(2) The public agency shall keep all documents or records in question 

until the end of the 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) 

Whenever it appears that certain public records are being improperly 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 court shall 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) If the court finds that the public 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 was justified in 

refusing to make the requested record available, he shall return the 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, if it 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 the provisions of this 

chapter if the public agency, public official or custodian acted in good faith 

in attempting to comply with the provisions of this chapter. [I.C., § 9-346, 

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

667 PRIVATE WRITINGS 

•

. r s By January 1 1991, every state agency 

sh~i~~opt~i~~~~~a~~~~t~tt~: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 of this act are hereby declared to 

9-348. Severability. - . f thi act or the application of such 

be severable and if any pr?VlSIOn 0 . s declared invalid for any reason, ., t person or eircumstance IS . f thi prOVISIOn 0 any ff th Iidity of remaining portIOns 0 IS 

such declaration shall not a ect e va I 1 480 ] 

§ 9-348 as added by 1990, ch. 213, § ,p. . act. [I .., C ' 

Section III of S.L. 1990, ch, 213 provided Compiler's notes. Section 2 of S.L. 1990J 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 ­

When notice not terpretation of act. necessary· 

Writing 9-416. Business records - Short title of act. 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 of private 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 instrument proVlded 

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 

manner by any inst~ent~or I :ar :ture of the writer. A scroll or other 

writing the word "seal agamst t s gnor forei country, and there recog­


sign made in another state or te~~:>' thi sta~ [C.C.P. 1881, § 922; R.S.,
 

nized as a seal, must be 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 of the 

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 supplements orsuggested improvements or additions you will find 

postpaid cards in the back of the 1991 Replacement Index 

Volumes. 

Place this supplement in the pocket of the corresponding 

volume of the set 

I
 

COPYRIGHT © 1991
 

All Rights Reserved
 

By
 

THE MICHIE COMPANY 

Law Publishers 

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 regular session 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 of the 

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 that have nothing but annotations are not included in the analyses. 

Following is an explanation of the abbreviations of the 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 contains comments and information on the many 

features found within the Idaho Code intended to increase the usefulness of 

this set of laws to the user. See Volume 1 of this 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 incompetent to testify at 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 

•
 
44 -45 PUBLIC WRITINGS •
9-340 

!l·337 •
 EVIDENCE 

9-337. Definitions. (5) Production records, sale or purchase records, catch records, mortgage 

portfolio loan documents, or similar business records 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. 

Title company's desire to avoid increases in 

fees charged by the recorder does not outweigh the recorder's duty to protect the 

safety of documents entrusted to his care nor 

does it diminish the recorder's power to 'control the orderly function of his office, and accordingly the recorder cannot be compelled to 

~llow private photocopying of public records 

In the courthouse. Adams County Abstract 

Co. v. Fisk, 117 Idaho 513,788 P.2d 1336 (Ct. 

App. 1990). 

enterprise required by law to be submitted to or inspected by a public 

agency. Nothing in this subsection shall limit the use which can be made of 

such information for regulatory purposes or its admissibility in any enforcement proceeding. 

(6) Records relating to the appraisal of real 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 

public project until such time 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 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 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 of any 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 matobligations ter of law "raw notes" ("handwritten notes" 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 of County 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 exempt from 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.nd sl.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, if not already known to the 

general public, 

(4? Arch.a~ological and geologic records concerning exploratory drilling, 

logging, mmmg and other excavation, 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 

licensing examination, employment, academic or other examination or 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, 

home telephone numbers and other financial 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 concerning the investment of 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 social 
9-340 • ,.. • 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-

(5) Unless otherwise provided b a I' . I

Pa rt of . . . y gency ru e, InfOnnatlOn obtained as I 

an inquiry Into a person's fitness to b d '. certificate permit "1 "egrants or retain a license , , privi ege, commISSIon or position ' I (16) Com~uter programs developed or purchased b or fo ' I

agency for Its own use. As used i thi b ' / r any public " n IS su section, computer p " 

means a series of Instructions 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 d use 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~:~~:do~o t~re P:t~~~:t~ebryytfihe 

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 " d an ~, 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 under th d:tc.ement agency, as defined in 

Idaho Code.' , e con 1 IOnsset forth 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 public health study, 

(24) Records of investigations prepared by the department of health and 

welfare pursuant to its statutory responsibilities dealing with the protection of children, the rehabilitation of youth, 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 of hospital care, medical records, records of psychiatric care 

or treatment and professional counseling records relating to 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 of judicial proceedings, the disclosure of which is prohibited by or under rules 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 to judicial 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 comprising the work papers in the possession of 

the office of the legislative auditor prior to release of the 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 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 of such records outweighs the legitimate public 

or private interest in maintaining confidentiality of such 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 
3-1603 

48 

this suAion will no longer apply to any record used in any judicial 

proceed~roughtby 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 of the department of correction or the commission of pardons 

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 of the department of correction 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 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 scoring materials, grievances, correspondence and performance 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).
 

Spanish language and submitted to the cou
 

I