..

## --,



## .

• JllllO1989

### OFF\C~\NO\FSTQ Tnt:' REGIONAL,t\.Db, ,';. '

..r STATE OF IDAHO OFFICE OF THE ATIORNEY GENERAL JIM JONES BOISE 83720 TELEPHONE ATIORNEY GENERAL (208) 334-2400 July 3, 1989

RobieRussell RegionalAdministrator u.s. Environmental ProtectionAgency Region 10 1200 sixthAvenue Seattle, Washington 98101 Re: Attorney General's Statement for Final Authorization IncludingChanges tothe Federal RCRA ProgramThrough July 8, 1987 DearMr. Russell: In response to the comments of the Environmental Protection Agency regarding Idaho's application for final authorization submitted July 6, 1988, I hereby amend and supplement the above-referenced Attorney General's Statement dated as follows: 1. Page 1. Add the following paragraph between the existing first and secondparagraphs. The various RCRA checklists submitted by the Idaho Department of Health and Welfare (IDHW) and referenced by this Statement are hereby incorporated by reference. The IDHW Rules and Regulations, Title 1, Chapter 5, "Rules, Regulations and Standards for Hazardous Waste" (IDHW Hazardous Waste Regulations) were promulgated pursuant to the authority of the Idaho Hazardous Waste Management Act of 1983 (HWMA), Idaho Code §§ 39-4401 through 4432, as amended, and the procedures established by the Idaho Administrative Procedures Act (APA), Idaho Code §§ 67-5201 through 5218, as amended. The IDHW Hazardous Waste Regulations are cited herein, for example, as IDAPA §§ 16.01.5000 et seq. 

# •

# .­ 

# • RobieRussell Page 2 July 3, 1989

Idaho law authorizes incorporation by reference and the IDHW Hazardous Waste Regulations incorporate specific sections of Title 40 of the Code of Federal Regulations by reference in accordance with the authorization and procedural requirements by Idaho Code § 67-5203A. Reference inthis statement ismade to the specific sections of Title 40 of the Code of Federal Regulations incorporated by the IDHW HazardousWasteRegulationsbyuse of a parenthetical following the IDAPA citation. For example, IDAPA § 16.01.5005 (261) references the state regulation which incorporatesthehazardouswaste identification and listingprovisionof 40 CFR § 261. Idaho Code § 39-4404 prohibits the adoption of rules and regulations "more stringent or broader in scope than RCRA and the RCRA regulations of the environmental protection agency." This stringency provisionpertains onlytothe authority ofthe Board ofHealth andWelfareto adoptrules and regulations. IDHW Hazardous Waste Regulations adopted pursuant to the authorization of HWMA and the procedures of the APA remain effective'and enforceable even in the event less stringent RCRA regulations are thereafter promulgated by EPA. state rules and regulations in suchan instancemay thereforebemore stringentthan corresponding EPA regulations until such state regulations are repealed or amended in accordance withtheprocedures oftheAPA. 2. Page 2, I.A. Amend 40 C.F.R. § 262.51 citation in last paragraphto 40 C.F.R. § 262.70. 3. Page 6, V. Add the following after last existing paragraph. While Idaho Code §§ 39-4405 and 4413(2) reference the "modif[ication]," "revocation" or "suspension" of permits and section 3005(d) ofRCRA simply references "revocation," the federal regulations and the IDHW Hazardous Waste Regulations identically provide for the "revocation and reissuance" or "termination" of permits in 40 C.F.R. §§ 270.41 and 270.43 and IDAPA § 16.01.5012 (270). Despite the superficial differences between the Idaho statutory and 

# • regulatory language, the promulgation of revocation

# • RobieRussell Page 3 July 3, 1989

and reissuance or termination procedures and standards are within the scope of HWMA and the specific rUle-making authority provided therein to the Board of Health andWelfare in Idaho Code §§ 39­ 4404, 4405(4) and 4409(3). Accordingly, the provisions of IDAPA § 16.01.5012 (270) are valid and can be effected by IDHW. Presumably the identical procedures and standards provided in the federal regulations pursuant to the narrower authority of RCRA are alsovalid. Idaho Code § 39-4409(7) authorizesvariances from the requirements of IDHW Hazardous Waste Regulations pertaining to permits. This section expressly requires a finding, however, that the issuance of a variance would not be inconsistent with RCRA. One instance where the issuance of a variance would not be inconsistent with RCRA is the situationwhere EPA RCRA regulations, which are adoptedby the state, are subsequentlyamendedbyEPAtobe less stringent. In suchan instancethe IDHW HazardousWasteRegulations would temporarily be more stringent than EPA regulations. The variance provision would allow a permit holder or applicant to obtain a variance from the more stringent state regulation. In such an instance, the issuance of a variance would not be inconsistentwithRCRA. 4. Page 6, VI. Add the following paragraph after existing paragraph. IDAPA § 16.01.5800 provides broad frequency ranges for hazardous waste inspections. These ranges apply only to inspections performed for hazardous waste regulatory purposes and are expressly SUbject to agency time and resource constraints. Moreover, the regulations provide that more frequent inspections can be made upon reasonable cause to suspect a violation of HWMA or the regulations promulgated thereunder or upon issuance of a policy guidance memorandum by the director of IDHW. Overall, these frequency guidelines pose no binding restrictions on the authority of IDHW to performnecessary hazardous waste inspections

. 

# •

# • RobieRussell Page4 July 3, 1989

5. 

### Page 12, I. G. Add the following to end of last paragraph. No other state statutes appear to limit the regulation of the hazardous component of mixed hazardous waste and radioactive waste as hazardous waste. 6. Page 19, XV.A. Amend IdahoCode § 

### 39-4423(11) citationto 4423(1)

. 7 . Page 22 , D. 2 . Amend II•••

### permanent requirement

..." to "

...permitrequirement

...... 8. Page 25, XVI. Add the following new subsection. K. state statutes require the state to adopt interim statusgrantedbyRCRA orpermits issued by EPA prior to state authorization as state granted interim status or stategrantedpermits. By the plain language of Idaho Code § 

### 39­ 4409(2), RCRA granted interim status or EPA issued permits become state granted interim status or state granted permits by operation of law. Accordingly, as state granted interim status or state granted permits, all the terms and conditions of such interim statusorpermits are enforceable by the state, even where such terms and conditions stem in whole or in part from federal statutory or regulatory provisions not yet adopted by the state. However, the statecannot issuea new statepermitwithterms and conditions not authorized by Idaho law. Interim status or permits adopted by the state are valid and enforceable until the issuance of a new state permit or until termination, revocation or modification. Until the date of authorization of the state program, state law, therefore, provides for complete adoptionbythe 

# •, ,

# . l •. " ,11

... 

# • RobieRussell Page 5 July 3, 1989

state of federal interim status and federal permits. Idaho Code § 39-4409(2). 9. Page 29, XXII.A. Add the following before last sentence of paragraph and Idaho Code §§ 39-105(3)(h) and (5) to citation. Moreover, the Director is specifically authorized by Idaho Code §§ 39-105(3)(h) and (5) to establish liaisonswithothergovernmental entitieswith regard toplanningfor the control of environmental problems and enter into agreements with pubL'ic agencies to carryout Department duties. 10. Page 30, XXIII. Add the following to end ofparagraph. 

# • Moreover, IDAPA § 16.01.5005 (261) which is identical to 40 C.F.R. 261 provides further regulatory interpretation as to processes and materials which are not SUbjecttoregulation. Sincerely,

JONES ORNEY GENERAL JTJ/pg



# •

# • ATTORNEY GENERAL'S STATEMENT FOR FINALAUTHORIZATION INCLUDING CHANGES TO THE FEDERALRCRA PROGRAM THROUGH JULY 8, 1987

I hereby certify, pursuant to my authority as Attorney General and in accordance with section 3006(b) of the Resource Conservation andRecoveryAct (RCRA), as amendedby theHazardous and SolidWasteAmendments of 1984 (HSWA) (42 USC6901, et**~),** and 40 CFR271, that inmyopinionthe laws ofthe stateof Idaho provide adequate authority to carry out the program set forth in the "Program Description" submitted by the Idaho Department of Health and Welfare. The specific authorities provided are contained in statutes or regulations lawfully adopted and effective atthe time this Statement is signed. For ease of reviewby the Environmental ProtectionAgency (EPA), this Statement is organized in accordance with EPA's existing model attorney general statements. "PART 1" tracks EPA's preHSWA "MODEL ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION." "PART 2" tracks EPA's post-HSWA "MODEL ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION FOR CHANGES TO THE FEDERAL RCRA PROGRAM FROM JANUARY 1983 THROUGH DECEMBER 1986." "PART3" addresses regulatorychanges to the Federal RCRA Program 

# • from January 1, 1987 through and including July 8, 1987, which are not coveredbyEPA's existingmodels. EPA'S recent amendment ofthe "Model" for "Part 2" above (OSWER DirectiveNo. 9541.00-7) was not available for utilization in preparing this Statement. However, the regulatory changes addressed by the amendment are covered in "Part 3" ofthis Statement throughJuly 8, 1987.

PART 1 I. IDENTIFICATIONAND LISTING A. State.-.-.statutes and regulations define hazardous waste so as to control all the hazardous waste controlled under 40 CFR261 as indicated in Checklist I A. Idaho Code § § 39-4403(7) and (19), 4404, 4405(1), and 4406.' (1)

. .

. -**IDA~~** §§ 16.01.5004 (260.10) and 5005 (261.1-261.7).

-- -,

### ...**:~**

. ( 

# ­ Idaho's farmer-and rancher exclusion is equivalent and consistent with federal law. The Hazardous Waste Management Act (Idaho Code § 39-4401, et**~;** HWMA) states that 

# • [f]armers 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 [of Health and Welfare] rules or regulations to do anythingmorethan followthe instructions onthepesticide label andtriplerinseempty containers in accordance with the RCRA regulations of the environmental protection agency. Idaho Code § 39-4404. This language is consistentwith RCRA and the regulations thereunder for the following reasons. First, the same provision of the HWMA in which the above language appears provides that the Idaho Legislature

..intends that the state of Idaho enact andcarryout a hazardouswasteprogramthatwill enablethe stateto assumeprimacyoverhazardous waste control fromthe federal government... Id. Second, the plain language of the farmer and rancher exclusion expressly states that farmers and ranchers are to be regulated by the Board of Health and Welfare "in accordance with the RCRA regulations." EPA's RCRA regulations currently ineffectprovidethat a 

# • farmerdisposing ofwastepesticides fromhis own use which are hazardous wastes is not required to comply with the standards [applicableto generators ofhazardouswaste] orother standards [regardinghazardous waste facility permits, or permitted or interim statushazardouswastetreatment, storage and disposal facilities] for those wastes provided he triple rinses each emptied pesticide container in accordance with [40 CFR] 261.7(b)(3) and disposes of the pesticide residues on his own farm in a manner consistent with the disposal instructions onthepesticide label. 40 CFR 262.51. An identical provision appears in Idaho's Hazardous Waste Regulations Section 16.01.5006 (262.70) and represents the Department's long-standing regulatory interpretation of the farmer and rancher exclusion in the HWMA. Thus, express legislative intent, the plain language of the HWMA, and the Department's long-standing interpretationofthe farmer and rancher exclusion in Idaho Code § 39-4404 as codified in Idaho's Hazardous Waste Regulations show that Idaho's farmer andrancherexclusion is equivalent and consistentwith federal law. 

# • B. State statutes and regulations contain a list of hazardous waste and characteristics for identifying

-2­

# • hazardous waste which encompass all wastes controlled under 40 CFR261 as indicated in Checklist I BandC. Idaho Code §§ 39-4404, 4405(1), 4406(1), and 4407. IDAPA § 16.01.5005 (261.10-261.33).

II. STANDARDS FOR GENERATORS State statutes and regUlations provide coverage of all the generators covered by 40 CFR 262 as indicated in Checklist II. Idaho Code §§ 39-4403(6), 4404, 4405(2), and 4406(1). IDAPA §§ 16.01.5004 (260.10), 5005 (261.5) and 5006 (262.10). III. STANDARDS FOR TRANSPORTERS State statutes and regUlations provide coverage of all the transporters coveredby40 CFR263 as indicated in Checklist III. 

# • Idaho Code §§ 39-4403(16) and (17), 4404, 4405(2), and 4406(1)

. IDAPA §§ 16.01.5004 (261.10) and 5007 (263.10). IV. STANDARD FOR FACILITIES A. State statutes and regulations provide permit standards for hazardous waste management facilities coveredby 40 CFR264 as indicated in Checklist IV A. Idaho Code §§ 39-4403(9), 4404, 4405(2), 4406(1), and 4409(1)

. IDAPA§§ 16.01.5004 (260.10) and 5008 (264.1). B. State statutes and regUlations provide for interim status and include interim status standards for hazardouswastemanagement facilities coveredby 40 CFR 265 as indicated in Checklist IV B. 1. State statutes and regUlations authorize owners and operators of hazardous waste management facilities which would qualify for interim status under the federal program to remain in operation until a final decision is made on the permit 

# • application.

-3­

# • IdahoCode §§ 39-4404, 4406(1), and 4409(2). IDAPA §§ 16.01.5008 (264.3) and 5009 (Part 265). 2. state law and regulations authorize continued operationofhazardouswastemanagement facilities provided that owners and operators of such facilities comply with standards at least as stringent as EPA's interim status standards at 40 CFR265. IdahoCode §§ 39-4404, 4406(1), and 4409(2). IDAPA §§ 16.01.5008 (264.3) and 5012 (270.70­ 270.73). 3. state lawandregulations assurethat any facility qualifying for state interim status continues to qualify for federal interim status. Idaho Code §§ 39-4404, 4406(1), and 4409(2). IDAPA §§ 16.01.5008 (264.3) and 5009 (Part 265). 

# • v. REQUIREMENTS FOR PERMITS state statutes and regulations provide requirements for permits as indicated inChecklist

## v. IdahoCode §§ 39-4409(1) and 4413(A)(2). IDAPA § 16.01.5012 (270.1-270.4). Owners and operators of hazardous waste facilities are SUbject to permit requirements. Idaho Code § 39-4409(1) provides that "[t]he owner or operator of the [hazardous waste management] facility or site rather than the builder shall be responsible for obtaining the [hazardous waste management] permit." This provision is equivalent and consistentwith federal law for the following reasons.



# • First, the plain language of Idaho Code § 39-4409(1) prohibits any person from constructing, operating or modifying a hazardous waste facility or site without a permit and places the responsibility for "obtaining" a hazardous waste permit on the operator or owner of the facility or siteratherthanthebuilder. This Sectiondoes not limit responsibility for permit signature, permit compliance orhazardouswastemanagement responsibilities to onlyone ofeitherthe owneroroperator; it simplyprovides that the builder of the hazardous waste facility or site is not responsible for obtaining a permit. Second, the use of

-4­

# • the phrase "owner or operator" is consistent with its use throughout Section 3005 of RCRA. For example, RCRA requires the EPA Administrator to "promulgate regulations requiring each person owning or operating an existing facility or planning to construct a new facility.

. to have a permit" (RCRA § 3005(a)); authorizes "any person owning or operating a [TSCA incinerator to] file an application" (Id.); provides for termination of interim status "unlessthe owneroroperatorofthe facility applies for a final determination regarding the issuance of a permit" (RCRA § 3005(c)(2»; and, grants interim status to "[a]ny person who owns or operates a facility" who complies with certain requirements (RCRA § 3005(e)) . Third, EPA regulations specifically provide that "[w]hen a facility or activity is owned by one person but is operated by another person, it isthe operator's dutyto obtaina permit, except that the owner must also sign the permit application." 40 CFR 270.10(b). Thus, RCRA andthe regulations thereunder do not requirethatboththe ownerand operator are responsible for "obtaining" a hazardous waste management permit. Moreover, Idaho's Hazardous Waste Regulations Section 16.01.5012 (270.10(b» is identical to the EPA regUlation quoted above. 

# • Finally, regarding owner and operator responsibilities for hazardous waste management requirements through hazardous waste facility permits, Idaho Code § 39-4409(1) provides that "[n]0 person shall construct, operate or modify a hazardous waste treatment, storage, or disposal facility or site without a permit. ," and Idaho Code § 39-4408(1) provides that "[n]0 person shall treat or store hazardous waste, nor discharge, incinerate, release, spill, place, or dispose any hazardous waste unless the department has issued said person a permit " "Person" includes both the owner and operator of a facility in the context of these permit requirements. Idaho Code § 39-4403(12). As indicated above, Idaho's Hazardous Waste RegUlations require that both the owner and operator of a facility sign the permit application. IDAPA § 16.01.5012 (270.10(b». As signatory to the permit application, both parties are responsible for permit violations. Thus, both the owner and operator of a hazardous waste facility would be responsible for the facility's violations of the HWMA or a hazardous waste management permit. Accordingly, permit requirements for owners and operators of hazardous waste facilitiesunder Idaho law isconsistent and equivalentwith federal law. 

# • The grounds for revocation ofhazardous waste permits under Idaho law are consistent and equivalent with federal law. The HWMA provides that the state "may revoke or temporarily suspend the permit of any hazardous waste facility or site

-5­

# • [if the permitted party fails to comply with the terms and conditions of the permit, the HWMA, or the Hazardous Waste Regulations]." Idaho Code §§ 39-4413(A)(2)(a) and 4409(6). This authority is equivalent and consistent with RCRA § 3005(d), which authorizes EPA to revoke a permit for "any noncompliance" with RCRA § § 3004 and 3005, because the requirements of RCRA §§ 3004 and 3005 are likewise requirements oftheHWMA ortheHazardousWaste Regulations. Thus, allpossibleviolations ofRCRA §§ 3004 and 3005would necessarily result in similar violations of either HWMA or theHazardousWasteRegulations. The HWMA authorizes revocation if the "permitted party fails to comply" with a permit requirement, regulation or statutory provision; i.e., that some act or omissionby the permittee caused a violation. Idaho Code §§ 39­ 4413(A)(2)(a) and 4409(6). The provision in Idaho Code § 4413(A)(2)(a) that a violation occurring as a result of an "unforeseeable act of God" is not grounds for revocation is merely a codification of the doctrine of superceding causation. The requirement ofcausation and the doctrine of superceding causation is implied in the grounds for revocation in RCRA § 3005(d)

. Accordingly, revocation of hazardous waste permits under Idaho law is equivalent and consistentwith federal law. 

# • VI. INSPECTIONS State law provides authority for state employees and representatives engaged in compliance evaluation activities to enter any conveyance, vehicle, facility or premises sUbject to regulation or in which records relevant to program operation are kept in order to inspect, monitor, or otherwise investigate compliance with the state program including compliance with permit terms and conditions and otherprogramrequirements. Idaho Code § 39-4412. VII. ENFORCEMENT REMEDIES State statutes and regulationsprovidethe following: 

### A. Authority to restrain immediately, by order orby suit in state court, any person from engaging in any unauthorized activity which is endangering or causing damage tothepUblichealth orthe environment. Idaho Code § 39-4414(3). 

# • B. Authorityto sue incourts ofcompetentjurisdictionto enjoin any threatened or continuing violation of any program requirement, including permit conditions,

-6­

# • without the necessity of a prior revocation of the permit. Idaho Code §§ 39-4413(A)(3) and 4414(3). EPA regulations require states to have authority to seek an injunction to stop "threatened" violations of the HWMA. 40 CFR271.16(a)(2). It is not clearwhich RCRA provision EPA relies upon for this requirement. RCRA § 3008(a) permits EPA to seek an injunction against anypersonwho "hasviolated or is inviolation of" any RCRA requirement. Idaho Code § 39-4414(3)(a), which authorizes an injunction against "any person who violates" any provision of the HWMA or the Hazardous WasteRegulations isno less stringent. NeitherRCRA § 3008(a) nor any regulations thereunder appear to authorizeEPAto enjoin "threatened" violations. Idaho law is therefore equivalent and consistent. Furthermore, Idaho Code § 39-4414(3)(a) does authorize immediate injunctive relief upon a showing that a violation of any requirement is causing an "imminent hazard" to the pUblic health, the pUblic safety, or to the environment. 

# • C. Authority to assess or sue to recover in court civil penalties in at leastthe amount of $10,000 perday for anyprogramviolation. Idaho Code §§ 39-4413(A)(3) and 4414(1). Idaho Code § 39-4413(A)(1)(d) provides that "[a] consent order shall preclude any civil enforcement action for the same alleged violation." Entering a consent order does not restrict the ability of the state to bring actions alleging violations of statutes other than the HWMA or common law causes of action. Further, entering a consent order has no effect on any federal action. The United states Constitution and RCRA do not authorize the state of Idaho, either by statute or by administrative or civil enforcement action, tobindthe federal government. RCRA § 3008(a) provides EPAwith authorityto enforceviolations of 

# •

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# • RCRA even in a state authorized to carry out a hazardous waste management program under RCRA § 3006, provided EPA gives prior notice to the state. Under the Supremacy Clause of the U. S • Constitution, the state of Idaho has no authority to abrogate the authority conferred by Congress upon EPA in RCRA § 3008(a). U. S . Constitution, Article VI, section 2. Thus, Idaho Code § 39-4413(A)(1) (d) is not inconsistentwithRCRA. D. Authority to obtain criminal penalties in at least the amount of $10,000 per day for each violation, and imprisonment for at least sixmonths against anyperson who knowingly transports any hazardous waste to an unpermitted facility; who treats, stores, or disposes of hazardous waste without a permit; or who makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained, orused for thepurposes of programcompliance. Idaho Code § 39-4415. 

# • Idaho Code § 39-4415(2) authorizes criminalprosecution of any person who knowingly violates any provision of theHazardousWasteRegulations. Acriminal remedy can be obtained against a person who knowingly transports hazardous waste to an unpermitted facility through either 1) IDAPA § 16.01.5007 (263.20) whichprohibits a transporter from accepting "hazardous waste from a generator unless it is accompanied by a manifest" preparedbythegenerator in accordancewith 40 CFR262 whichrequires thedesignation of a permittedhazardous waste facility; or 2) IDAPA § 16.01.5007 (263.21) which generally requires compliance by the transporter with designations on the manifest. In order for a transporter to knowingly deliver hazardous waste to an unpermitted facility, thetransporterwouldhavehad to either knowingly accepted hazardous waste without a manifest or an incorrect manifest or knowingly failed to deliver the hazardous waste in accordance with a correct manifest. A criminal remedy could be obtained for any ofthesepossibilities. VIII. PUBLIC PARTICIPATION IN THE STATE ENFORCEMENT PROCESS State laws and regulations provide for pUblic participation in the enforcement process by allowing intervention as of right in any civil action to obtain the remedies specified inSectionVII A, B, and Cabovebyany interestedperson. 

# • Idaho Code § 39-4416(2).

-8­

# • IdahoRules ofcivil Procedure 24(a). Idaho Code § 39-4416(2) provides that "if the department commences an action in a court of the state of Idaho, any interestedpersonmay intervene asprovided inRule 24(a) of the Idaho Rules of civil Procedure [IRCP].II The plain language of the Idaho' Code provides for citizen intervention as of right which is at least as broad as EPA regulations since the right of intervention under IRCP Rule 24(a)(2) is consistent and equivalent to the right of interventionprovidedunderRCRA § 7002. IX. AUTHORITY TO SHARE INFORMATION WITH EPA State statutes and regulations provide authority for any information obtained or used in.the administration of the state program to be available to EPA upon request without restriction. Idaho Code § 39-4411(3). IDAPA § 16.01.5750,06. X. AUTHORITY OVER INDIANLANDS 

# • The state does not seek hazardous waste jurisdiction over Indian landspursuanttoRCRA.

PART2

1. IDENTIFICATIONAND LISTING A. State statutes and regUlations contain lists of hazardous wastes which encompass all wastes controlled underthe following Federal RegUlations as indicated in thedesignatedRevisionChecklists: 1. Chlorinated aliphatic hydrocarbons, 40 CFR261.31, as amended February 10, 1984, Revision Checklist4. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.31)

. 

# •

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# • 2. Warfarin and zinc phosphide listing, 40 CFR 261.33(e) and (f), as amended May 10, 1984, RevisionChecklist7. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA§ 16.01.5005 (261.33). 3. TDI, DNT and TDA wastes, 40 CFR261.32 and 261.33(f), as amended October 23, 1985, Revision Checklist 18. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.33). 4. Spent solvents, 40 CFR 261.31, as amended December 31, 1985 and January 21, 1986, Revision Checklist 20. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.31). 

# • 5. EDB wastes, 40 CFR261.32, as amended February 13, 1986, Revision Checklist 21. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.32). 6. Four spent solvents, 40 CFR261.31 and 261.33(f), as amended February 25, 1986, Revision Checklist 22. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.31 and 261.33). 7. Listing of spent pickle liquor, 40 CFR261.32, as amendedMay 28, 1986 and September 22, 1986. Idaho Code §§ 39-4403(7) and 4407(2). IDAPA § 16.01.5005 (261.32). 8. Listing of commercial chemical products and Appendix VIII constituents, 40 CFR 261.33, and AppendixVIII, as amendedAugust 6, 1986, Revision Checklist 29. 

# • Idaho Code §§ 39-4403(7) and 4407(2).

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# • IDAPA § 

### 16.01.5005 (261.33). 9. 

### EBDC wastes, 40 CFR 261.32, as amendedOctober 24, 1986, RevisionChecklist 33. IdahoCode §§ 

### 39-4403(7) and 4407(2). IDAPA § 

### 16.01.5005 (261.32). B. state statutes and regulations define hazardous waste so as to control the generation, transportation, treatment, storage and disposal of hazardous waste produced by small quantity generators of between 100 and 1,000 kilograms/month as indicated in Revision Checklist 23. state statutes and regulations also require small quantitygeneratorstocertifygood faith efforts to minimize waste generation and to select the best available and affordable treatment, storage or disposal alternatives in accordance with 40 CFR 262 as amended October 1, 1986, as indicated in Revision Checklist 32. 

# • Idaho Code §§ 

### 39-4403(6) and (7), 4404, 4405(2), 4406(1) and 4407. IDAPA §§ 

### 16.01.5004 (260.10), 5005 (261.1-261.7 and 5006 (262.41). C. 

### state statutes and regulations provide authority to delist hazardous waste as indicated in Revision Checklist 17B. 1. state statutes and regulations require that before deciding to delist a waste, the statemust consider whether any listing factor, including additional constituents, other than those for which the waste was listed would cause the waste tobehazardous. Idaho Code §§ 

### 39-4404, 4405(2), and 4406(1). IDAPA § 

### 16.01.5004 (260.22). 2. state statutes and regulations require that there be no new temporary delistings without prior notice and comment. All temporary delistings received before November 18, 1984 without the opportunity for pUblic comment and full consideration of such comment shall lapse if not 

# • made final byNovember 8, 1986.

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# • Idaho Code §§ 39-4404, 4405(2), and 4406(1). IDAPA § 16.01.5004 (260.20(d». D. state statutes and regulations define hazardous waste so as to exclude waste pickle liquor sludge generated by lime stabilization but only to the extent that such waste is excluded by 40 CFR 261.3(c)(2), as amended June 5, 1984, as indicated inRevision Checklist 8. Idaho Code §§ 39-4403(7) and 4407(1). IDAPA § 16.01.5005 (261.3(c)(2)(ii)(A). E. state .at.atnrtes and regulations define hazardous waste so as to not exclude household waste other than those household wastes excluded in 40 CFR261.4(b)(1), as amendedNovember 13, 1984, and as indicated inRevision Checklist 9. Idaho Code §§ 39-4403(7) and 4407. IDAPA § 16.01.5005 ( 261.4(b)(1)) . 

# • F. state statutes and regUlations incorporate the most recent edition and updates to "Test Methods for Evaluating SolidWaste, Physical/ChemicalMethods" 

### (sw846) as indicated inRevision Checklist 11. Idaho Code §§ 39-4404, 4405 and 4406(1). IDAPA § 16.01.5004 (260.10 and 260.11). G. State statutes and regUlations define hazardous wastes to include the hazardous components of radioactive mixedwastes. Idaho Code §§ 39-4403(7)(b) and 4404. Idaho Code § 39-4403(7)(b) provides an arguable exception to the definition of "hazardous waste" for "source, special nuclear or byproduct material as defined by the Atomic Energy Act." This exception is no greaterthanthe similarexceptionsprovidedbyRCRA § 1004(27)

. Accordingly, as under federal law, the hazardous waste components of mixed hazardous and exempt radioactive waste constitute "hazardous waste" regulatedunder Idaho law. II. DEFINITION OF SOLID WASTE 

# • state statutes and regUlations define hazardous waste and

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# • impose management standards so as to control all the hazardouswaste controlledunder40 CFR, Parts 261, 264, 265 and 266, as amended January4, 1985, April 11, 1985, and August 20, 1985, as indicated inRevision Checklist 13. Idaho Code 

### §§ 39-4403(7), 4404, 4405(1), 4406(1), and 4407. IDAPA 

### §§ 16.01.5004 (260.10), 5005 (261.1-261.7), 5008 (Part 264), 5009 (Part 265) and 5010 (Part 266).



# • Idaho law regulates specific non-hazardous wastes regulated under subtitleCofRCRA eventhoughHWMA, unlikeRCRA, does not utilize the solid waste/hazardous waste dichotomy as a means of defining the extent of HWMA's regulatory scope. Rather, HWMA authorizes the regulation of certain non­ "hazardous wastes," through express legislative intent, general authorizations, and specific authorizations. This regulatory scheme does not render the HWMA less stringent than RCRA. In any case, neither RCRA nor the regulations thereunder appearto require Idahoto regulatenon-hazardous wastes to obtain authorization to administer and enforce a "hazardouswasteprogram" in lieuofthe federal government. The state of Idaho seeks authorization of its "hazardous waste program" under RCRA § 3006(a) and 40 CFR 271.3(b)

. Thus, HWMA's focus on "hazardous waste" management does not make the state program less stringent than the federal program. HWMA specifically authorizes regulation of certain nonhazardous wastes in a manner equivalent to the HSWA and



# • generally authorizes regulation of recycling. For example, HWMA provides that "[w]aste or used oil or other material which is contaminated or mixed with any hazardous waste, other than wastes identified solely on the basis of ignitability, shallnotbeused for dust suppressionorroad treatment." Idaho Code § 39-4408(3)

. This prohibition, like RCRA § 3004(1), applies to used oil whether or not it is a "hazardous waste." Similarly, the HWMA prohibits placement of non-hazardous liquids in hazardous waste landfills under conditions equivalent to RCRA § 3004(c)(3) (Idaho Code § 39-4408(2)); corrective action for releases of hazardous waste or constituents beyond a permitted or interim status facility boundary from "solid waste management units" under conditions equivalent to RCRA § 3004(v) (Idaho Code § 39-4409(5)); and authorizes the regulation of "fuel containing hazardous waste" whether or not the fuel can be characterized as "hazardous" (Idaho Code § 39-4405). with respect to recycling, the HWMA defines the phrase "hazardous waste management" as the "systematic control of the collection, source separation, storage, treatment, transportation, processing, anddisposal of hazardous wastes." Idaho Code § 39-4403(8). Thus,

-13­

# • commonlyrecognizedrecycling activities (collection, source separation and processing) fall within "hazardous waste management." More importantly, the Idaho Legislature expressly intended the HWMA.to enable Idaho to obtain primacy from the federal government for hazardous waste management. Idaho Code § 39-4404. Finally, the broad authorization to adopt "rules and regulations which are in substanceconsistentwith federal regulations adoptedbythe [EPA] to implement RCRA" (Id.) authorizes the regulation of recycling in a manner identical to federal regulation in orderto obtain authorizationofRCRA § 3006. Furthermore, the Idahohazardouswastemanagementprogram is equivalent and consistent with the federal program in the area ofnon-hazardouswastes inthat Idaho'sHazardousWaste Regulations address non-hazardous wastes in all the areas discussed above (used oil, non-hazardous liquids, fuels and recycling) by incorporating the federal regulations verbatim. As discussed above, each of these regulatory provisions is supported by either a specific reference in the HWMA or by express legislative intent and a general authorization. ThUS, HWMA authorizes adoption of the federal hazardouswaste/solidwaste dichotomy andprovisions identical to federal requirements with respect to nonhazardous and solidwastes. 

# • III. MANAGEMENT OF DIOXINWASTES State statutes and regulations contain the following requirements regarding dioxin wastes as indicated in RevisionChecklist 14: A. Dioxin wastes are listed and otherwise identified as hazardous wastes so as to encompass all such wastes controlled under 40 CFR 261.5(e), 261.7(b), 261.30(d), 261.31 and 261.33(f). Idaho Code § § 39-4403(7), 4404, 4405(1), 4406(1), and 4407. IDAPA §§ 16.01.5005 (261.5(e), 261.7(b), 261.30(d), 261.31 and 261.33(f». B. Special management and permitting standards for facilities managing dioxin wastes and prohibitions applicableto interim status facilities, asprovided in 40 CFR, Parts 264, 265 and 270. Idaho Code §§ 39-4404, 4405(2), 4406(1), and 4407. 

# • IDAPA §§ 16.01.5008 (264.175(d), 264.193(a)(2), 264.231, 264.259, 264.283, 264.317, 264.343(a)(2» ;

-14­

# • 5009 (265.1(d), 265.193(a)(2), 265.352(a), and 265.383(a»; and 5012 (270.17(h)(i), 270.18(h)(i), 270.20(h)(i), and 270.21(j». IV. SATELLITEACCUMULATION State statutes and regulations allow generators to accumulate at the site of generation, without a permit or interim status, as much as 55 gallons of hazardous waste or one quart of acutely hazardous waste provided that the generatorcomplieswiththe requirements specified in40 CFR 262.34(c) as indicated inRevision Checklist 12. Idaho Code §§ 33-4403(6), 4404, 4405(2) and4409(1). IDAPA § 16.01.5006 (262.34(C». V. APPLICABILITY OF INTERIMSTATUS STANDARDS State statutes and regulations require facilities identified in 40 CFR265.1(b) to comply with interim status standards as indicated inRevision Checklists 3 and 10: Idaho Code §§ 39-4403(9) and 4409(2). 

# • IDAPA § 16.01.5009 (265.1(b». VI. PAINT FILTER TEST State statutes and regulations require the use of a paint filter test to determine the absence or presence of free liquids in either a containerized or bulk waste as identified inRevision Checklists 16, 17F and 25. Idaho Code §§ 39-4403(7), 4404, 4405(1), 4406(1), and 4407(1). IDAPA §§ 16.01.5008 (264.314), 5009 (265.314) and 5012 (270.21(h»

. VII. NATIONALUNIFORMMANIFEST State statutes and regulations require generatorstousethe national uniform manifest as indicated in Revision Checklists 5 and 32. Idaho Code §§ 4403(11), 4404, 4405(3), 4406(1), and 4410. IDAPA §§ 16.01.5004 (260.10) and 5006 (262.20, 262.21 and App.)

. 

# •

-15­

# • VIII. BIENNIALREPORT state statutes and regulations contain the following reportingrequirements as indicated inRevision Checklists 1 and 30. A. The biennial report contains the information indicated in 40 CFR262.41(a). Idaho Code §§ 39-4404, 4406(1), and 4411(1) and (2). IDAPA§ 16.01.5006 (262.41(a». B. Facilities must submit groundwater monitoring data annually to the Regional Administrator as indicated in 40 CFR265.94. Idaho Code §§ 39-4404 and 4411(1). IDAPA § 16.01.5009 (265.94). IX. WASTE MINIMIZATION 

# • state statutes and regulations contain the following requirements regarding waste minimization as indicated in Revision Checklists 17D, 30 and 32: A. Generators must submit report and manifest certifications regarding efforts taken to minimize the amounts andtoxicity ofwastes. Idaho Code §§ 39-4404, 4406(1), and 4411(1)(b). IDAPA § 16.01.5006 (262.23(a)(1), 262.41(a)(6)-(8) and App.). B. RCRA permits for treatment, storage or disposal of hazardous waste on the premises where the waste was generatedmust containa certificationbythepermittee regarding efforts taken to minimize the amount and toxicity ofgeneratedwastes. Idaho Code §§ 39-4404, 4406(1), and 4409(3). IDAPA §§ 16.01.5008 (264.75(h) and (i» and 5009 (265 . 75(h) and (i)) . X. LIQUIDS IN LANDFILLS 

# • State statutes and regulations contain the following requirements regarding liquids in landfills as indicated in

-16­

# • Revision Checklists 17F and 25

. A. Effective May 8, 1985, there is a ban on the placement of bulk or noncontainerized liquid hazardous waste or hazardous waste containing free liquids pursuant to 40 CFR 264.314 and 265.314, as amended July 15, 1985 andMay 28, 1986. Idaho Code §§ 39-4404, 4406(1), and 4408(4)(a). IDAPA §§ 16.01.5008 (264.314(b» and 5009 (265.314(b». B. Effective November 8, 1985, there is a ban on the placement of non-hazardous liquids in landfills unless the owner or operator satisfies the criteria set forth in 40 CFR 264.314(e) and 265.314(e), as amended July 15, 1985 andMay 28, 1986. Idaho Code §§ 39-4404, 4406(1), and 4408(2). IDAPA §§ 16.01.5008 (264.314(e» and 5009 (265.314(e». C. For bulk or non-containerized liquid wastes or wastes containing free liquids, they may be placed in a 

# • landfill priortoMay 8,**~985,** only ifthe requirements of 40 CFR 264.314(a) and 265.314(a) aremet

. Idaho Code §§ 39-4408(2) and (4). IDAPA §§ 16.01.5008 (264.314(a» and 5009 (265.314(a». XI. GROUNDWATER MONITORING 

### A. state statutes and regUlations provide that Section 3004 groundwater monitoring requirements applicable to surface impoundments, waste piles, land treatment units and landfills shall apply whether or not such units are located above the seasonal high water table, have two liners and a leachate collection system or have liners that are periodically inspected as indicated inRevision Checklist 171. Idaho Code §§ 39-4404, 4405(2) and (4), 4406(1), and 4409(3)• IDAPA §§ 16.01.5008 (Subpart F) and 5009 (Subpart F) . B. State statutes and regUlations allowvariances from the groundwater monitoring requirements as provided in Section 3004(p). However, these variances are 

# • restricted as provided inRCRA § 3004(p)•

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# • Idaho Code §§ 39-4404, 4406(1), and 4409(7). IDAPA §§ 16.01.5008 (264.90) and 5009 (265.90). XII. BURNING AND BLENDING HAZARDOUS WASTES A. State statutes and regulations provide the following requirements: 1. The burning of fuel containing hazardous waste in a cement kiln is prohibited as specified in 40 CFR 266.31 and Revision Checklist 17J. Idaho Code §§ 39-4404, 4405, 4406(1), and 4408. IDAPA § 16.01.5010 (266.31). 2. Fuels containing hazardous wastes and all persons who produce, distribute andmarket fuel containing hazardous waste must be regulated as indicated in Revision Checklists 17J and K. Idaho Code §§ 39-4404, 4405, 4406(1), and 4408. 

# • IDAPA § 16.01.5010 (266.34). B. State statutes and regulations provide exceptions to these requirements as specified in sections 3004(q)­ (s)• Idaho Code § 39-4409(7). IDAPA § 16.01.5010 (Subpart D). XIII. CORRECTIVE ACTION State statutes and regulations contain the following corrective action requirements as indicated in Revision Checklist 17L:

r-, A. Corrective action is required for releases of hazardous wastes or constituents from any solid waste management unit at a facility seeking a permit, regardless ofwhen the wastewas placed inthe unit, in all permits issued afterNovember 8, 1984, as indicated inRevision Checklist 17L. Idaho Code § § 39-4404, 4406(1), and 4409(1), (3), and (5)• 

# • IDAPA §§ 16.01.5008 (264.90 and '264.101) and 5012 (270.60)

.

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# • B. Corrective action is required beyond a facility's boundary in accordance with RCRA § 3004(v) for all landfills, surface impoundments and waste pile units (including any new units, replacements of existing units or lateral expansions of existing units) which receivehazardouswaste afterJuly 26, 1982. Idaho Code §§ 39-4404; 4405(2) and (4); 4406(1) and 4409(1), (3), (4) and (5) . IDAPA 

### § 16.01.5008 (264.90 and 264.101). C. There is evidence of financial responsibility for correctiveaction on­ and off-site. IdahoCode § 39-4409(3)(e). IDAPA § 16.01.5008 (264.101(b». XIV. HAZARDOUS WASTE EXPORTS State statutes and regulations require generators and transporters of hazardous waste destined for export outside 

# • the united States to comply with standards equivalent to those indicated inRevision Checklist 31

.. Idaho Code § § 39-4403(16), 4404, 4406(1), 4410, and 4411(3). IDAPA §§ 16.01.5005 (261.5(f)(3) and (g) (3) and 261.6(a)

### (3», 5006 (262.41, 262.50-262.60, 262.70 and App , ) 'I and 5007 (263.20). 

## xv. STANDARDS FOR FACILITIES A. State statutes and regulations prohibit the land disposal of hazardous wastes prohibited under 40 CFR, Parts 264 and 265, as indicated in Revision Checklist 17E. Land disposal includes, but is not limited to, landfills, surface impoundments, waste piles, deep injection wells, land treatment facilities, salt dome and bed formations and underground mines or caves. Deep injection well means a well used for the underground injection of hazardous waste other than a well towhichRCRA § 7010(a) applies. Idaho Code 

### §§ 39-4403(5) and (14), 4404, 4406(1), 44 08 (4)(a) and 4423 (11)

. 

# • IDAPA § 16.01.5011 (268.2(a), 268.30 and 268.31).

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# • B. Effective November 8, 1984, state statutes and regulations prohibit the placement of any noncontainerized or bulk liquid hazardous waste in any saltdome or saltbed formation or anyundergroundmine or cave except as provided in 40 CFR 264.18(c) and 265.18(c) as indicated in Revision Checklist 17E. Furthermore, state statutes and regulations prohibit the placement of any other hazardous waste in such formations until a permit is issued. Idaho Code § § 39-4403(5), 4404, 4405(2), 4408(1) and 4409(1)• IDAPA §§ 16.01.5008 (264.18(c)) and 5009 (265.18(c)). C. state statutes and regulations prohibit the use of waste oil or other materials contaminated with hazardous wastes (except ignitable wastes) as a dust suppressant as indicated inRevision Checklist 17G. Idaho Code § 39-4408(3). IDAPA § 16.01.5010 (266.23(b)). 

# • D. state statutes and regulations allow direct action by third parties against the insurer or guarantor of an owner/operator's financial responsibilities if an owner/operator is in bankruptcy reorganization or arrangement or where (with reasonable diligence) jurisdiction in any state or federal court cannot be obtained over an owner/operator likelytobe solvent at the time ofjUdgment. Idaho Code § 39-4413(B). E. state statutes and regulations require thepermittee to take steps to minimize releases to the environment in accordance with 40 CFR270.30(d) as amended September 1, 1983, as indicated inRevision Checklist 2. Idaho Code § 39-4409(1). IDAPA § 16.01.5012 (270.30(d)). F. state statutes and regulations require the closure and post-closure requirements and special requirements for containers apply to interim status landfills as indicated inRevision Checklist 15. Idaho Code §§ 39-4403(5), 4404, 4405(2) and 4409(2). 

# • IDAPA § 16.01.5009 (SubpartG, 265.310 and 265.315).

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# • G. state statutes and regulations require compliance with closure/post-closure and financial responsibility requirements applicable to owners and operators of hazardous waste treatment, storage and disposal facilities, as indicated inRevision Checklist 24. Idaho Code §§ 39-4403(9), 4404, 4405(2) and (4), and 4409(1)-(3)

. IDAPA §§ 16.01.5008 (Subparts G and H) and 5009 (Subparts G and H)• H. State statutes and regulations allow companies that treat, store or dispose of hazardous waste to demonstrate alternative coverage for liability insurance in the form of a corporate guarantee as indicated inRevision Checklist 27. Idaho Code §§ 39-4403(9),4404,4405(2) and (4), and 4409(1)-(3). IDAPA §§ 16.01.5008 (264.143(f), 264.145(f), 264.147(g) and 264.151(h)) and 5009 (265.143(e), 265.145(e) and 

# • 265.147(g».

I. state statutes and regulations require companies that generate, treat or store hazardous waste in containers to comply with tank standards equivalent to those indicated inRevision Checklist 28. Idaho Code §§ 39-4403(6), (15) and (18); 4404; 4405(2) and (4); 4408(1); and 4409(1)-(3). IDAPA §§ 16.01.5008 (SubpartJ) and 5009 (SubpartJ).

XVI. REQUIREMENTS FOR PERMITS 

### A. State statutes and regulations allow a facility (1) to construct an approved TSCA facility for burning PCBs without first obtaining an RCRA permit and (2) to subsequently apply for an RCRA permit in accordance withRevision Checklist 17M. Idaho Code §§ 39-4404, 4405(4) and 4409(1). IDAPA § 16.01.5012 (270.10(f». 

# • B. State statutes and regulations require review of land disposal permits every five years and modification of suchpermits as necessarytoensure compliancewiththe requirements of 40 CFR, Parts 264, 266 and 270, as

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### indicated inRevisionChecklist 17N. 

# • IdahoCode § 

### 39-4409(4). IDAPA § 

### 16.01.5012 (270.41(a)(6) and 270.50)). C. state statutes and regulations require permits to contain any conditions necessary to protect human health and the environment in addition to any conditions required by regulations as indicated in RevisionChecklist 170. IdahoCode §§ 

### 39-4404, 4406(1), and4409(1). IDAPA § 

### 16.01.5012 (270.32). D. state statutesandregulations requirethat: 

# • 1. 

### For land disposal facilities granted interim status prior to November 8, 1984, interim status terminates November 8, 1985 unless a Part B application and certification of compliance with applicable groundwater monitoring and financial responsibility requirements are submitted by November 8, 1985, as indicated in Revision Checklist 17P. Idaho Code §§ 

### 39-4404, 4406(1), and 4409(2). IDAPA § 

### 16.01.5012 (270.73(c)). 2. For land disposal facilities in existence on the effective date of statutory or regulatory changes that render the facility sUbject to the requirement to have a permit which is granted interim status, interim status terminates 12 months after the date the facility first becomes sUbject to such permanent requirement unless a Part B 

### application and certification of compliance with applicable groundwater monitoring and financial responsibility requirements are submitted by that date, as indicated in Revision Checklist 17P. IdahoCode §§ 

### 39-4404, 4406(1), and 4409(2). IDAPA § 

### 16.01.5012 (270.73(d)). 

# • 3. 

### Interim status terminates for incinerator facilities by November 8, 1989 unless the owner/operator submits a Part B 

### application by November 8, 1986, as indicated in Revision

-22­Checklist 17P. 

# • IdahoCode §§ 39-4404, 4406(1), and 4409(2)(c). IDAPA § 16.01.5012 (270.73(e». The Board of Health and Welfare is authorized by HWMA to adopt regulations "as necessary to provide forterminationof interim status." Idaho Code § 39-4409(2)(c). In addition, the Idaho Legislature adopted the HWMA with the intent that "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." Idaho Code § 39-4404. Read together these provisions authorize the Board to promulgate IDAPA § 16.01.5012 which provides for automatictermination of interimstatus. 

# • 4. Interim status terminates for any facility other than a landdisposal or an incineratorbyNovember 8, 1992 unless the owner/operator submits a PartB application by November 8, 1988, as indicated in Revision Checklist 17P. See above discussion regardingautomaticterminationwithout appeal. IdahoCode §§ 39-4404, 4406(1), and 4409(2)(c). IDAPA § 16.01.5012 (270.73(f». E. State statutes and regulations allow facilities to qualify for interim status if they (1) are in existence on the effective date of statutory or regulatory changes that render the facility sUbject to the requirement to have a permit and (2) comply with 40 CFR 270.70(a), as indicated in Revision Checklist 17P. IdahoCode §§ 39-4404, 4406(1), and 4409(2). IDAPA § 16.01.5012 (270.70(a». F. State statutes and regulations provide that facilities may not qualify for interim status under the state's analog to section 3005(e) if they were previously denied a section 3005(c) permit or if authority to operate the facility has been terminated as indicated inRevision 17P. IdahoCode §§ 39-4404, 4406(1), and 4409(2). 

# • IDAPA § 16.01.5012 (270.70(c».

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# • G. state statutes and regulations allow the issuance of a one-yearresearch, development anddemonstrationpermit (renewable 3 x) for any hazardous waste treatment facility which proposes an innovative and experimental hazardouswastetreatmenttechnology orprocess not yet regulated as indicated in the Revision Checklist 17Q. However, the staterequires the facility tomeetRCRA's financial responsibility and pUblic participation requirements and retains authority to terminate experimental activity ifnecessarytoprotecthealth or the environment. IdahoCode § 39-4409(8)(a). IDAPA § 16.01.5012 (270.65). 

# • H. state statutes and regulations require landfills, surface impoundments, land treatment units and piles that receive waste after July 26, 19.82, and which qualify for interim status to comply with the groundwatermonitoring, unsaturated zonemonitoring and corrective action requirements applicable to new units at the time of permitting as indicated in Revision Checklist 17L. Idaho Code §§ 39-4404, 4405(2) and (4), and 4409(1)­ (3)• IDAPA §§ 16.01.5008 (264.90(a)(2» and 5012 (270.71(b»

. I. 1. state statutes authorize the adoption of regulations requiring surface impoundments having interim status as of November 8, 1984, or SUbsequently becoming subject to RCRA pursuant to Section 3005(j)(6), to comply with the double liner, leachate collection and groundwater monitoringrequirements applicabletonew unitsby November 8, 1988, orthe date specified in section 3005(j)(6), or stop treating, receiving or storing hazardous waste, unless the surface impoundment qualifies for an exemption under Section 3005(j). IdahoCode § 39-4409(2). Notably, the requirements of 3005(j)(6) do not yet appear infederal regulations and, therefore, have not been incorporated by reference into Idaho 

# • regulations. However, amendments to HWMA effective JUly 1, 1988 authorize the promulgation

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# • of requirements in RCRA that are not promulgated in regulations thereunder. 2. state statutes and regulations allow variances

J.

XVII.A. 

# •

B. from the above requirements as §§ 3005(j)(2-9) and (13). availability of such variances provided inRCRA § 3005(j). provided in However, is restricted RCRA

the

as

Idaho Code § 39-4409(7). Facility owners or operators are given the opportunity to cure deficient Part A applications in accordance with 40 CFR 270.70(b) after failing to qualify f9r interim status. Idaho Code §§ 39-4404, 4406(1), and 4409(2). IDAPA § 16.01.5012 (270.70(b». MINIMUM TECHNOLOGY REQUIREMENTS

state statutes and regulations require that new units, expansions and replacements of interim status waste piles meet the requirements for a single liner and leachate collection system in regulations applicable to permitted waste piles as indicated in the Revision Checklist 17H. Idaho Code §§ 39-4404, 4406(1), and 4409(2). IDAPA § 16.01.5009 (265.254).

State statutes and regulations require that: 1. New units, expansions and replacement units at interim status landfills and surface impoundments and permitted landfills and surface impoundments meet .the requirements for double liners and leachate collection systems applicable to new permitted landfills and surface impoundments in 40 CFR 264.221 and .301, and 265.221 and .301 as indicated inRevision Checklist 17H. Idaho Code §§ 39-4404, 4406(1), 4409(2), and 4409(7)

. IDAPA § 16.01.5009 (265.221(a) and 265.301(a». 

# •

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# • 2. Facilities which comply in good faith need not retrofit at permit issuance unless the liner is leaking as provided in 40 CFR265.221(e) and 265.301(e) as indicated inRevision Checklist 17H. Idaho Code §§ 39-4404, 4406(1), 4409(2), and 4409(7)• IDAPA §§ 16.01.5009 (265.221(e) and 265.301(e». 3. Variances from the above requirements are allowed; however, the availability of such variances is restricted as provided in 40 CFR265.221(c) and 265.301(c) as indicated in RevisionChecklist 17H. Idaho Code §§ 39-4404, 4406(1), 4409(2), and 4409(7)

. IDAPA § 16.01.5009 (265.221(c) and 265.301(c). XVIII. EXPOSURE ASSESSMENTS 

# • A. State statutes and regulations require permit applicants for landfills or surface impoundments to submit exposure information as indicated in Revision Checklist 17S. Idaho Code §§ 39-4404, 4406(1), and 4411(1)(a) and (b) and (2). IDAPA § 16.01.5012 (270.10(j». B. State statutes and regulations allowthe stateto make assessment information availabletotheAgency for Toxic Substances and DiseaseRegistry. IdahoCode § 39-4411(3). IDAPA § 16.01.5750.06. XIX. AVAILABILITY OFINFORMATION State statutes and regulationsprovide that: A. All records shall be available to the pubLi,c except specified exempt records which would also be exempt from Federal FOIA, 5 USC 552 if they were federal records. 

# • IdahoCode §§ 9-301, 302 and 335, and 39-4411(3).

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# • IDAPA §§ 

### 16.01.5750,01 and 03. B. 

### All nonexempt records will be available to the pUblic uponrequestregardless ofwhether anyjustificationor need for suchrecordshasbeen shownbytherequester. IdahoCode §§ 

### 9-301 and 302, and 39-4411(3). IDAPA §§ 

### 16.01.5750,01 and 04.



# • C. 

### The same types of records would be at least as available to the publLc 

### from the state as would be available from EPA. For example, the following records would be available for pUblic inspection, except as provided in the statutes and regulations cited below: permit applications; biennial reports; closures plans; notices of facility closure; contingency plans; delisting petitions;**f~nancial** 

### responsibility instruments; groundwater monitoring data; spill reports; import and export reports; manifest exception; discrepancy and unmanifested waste reports; withdraw requests; final enforcement documents; and, inspection reports. Attorney fees are available for administrative and civil actions to obtain records where the agency acted unreasonably in refusing disclosure. Fees awarded are paid from the agency's regularoperatingbudget. IdahoCode §§ 

### 9-301 and 302, 12-117, and 39-4411(3). IDAPA § 

### 16.01.5750. D. Information is provided to the pUblic in sUbstantially the same manner as EPA provided in 40 CFR Part 2 as indicated inRevisionChecklist 26. Idaho Code § § 

### 9-301 and 302, 39-4411, and 67-5209­ 5213 and 5215. IDAPA § 

### 16.01.5750. E. Confidential business records are protected to the same degree as indicated in 40 CFRPart 2 and Revision Checklist 26. IdahoCode § 

### 39-4411(3). IDAPA § 

### 16.01.5750,03(a). 

# •

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# • xx. BURNING OF WASTE FUEL AND USED OIL IN BOILERS AND INDUSTRIALFURNACES A. State statutes and regulations contain the following requirements regarding the burning of waste fuel and used oil fuel for energy recovery in boilers and industrial furnaces as indicated in Revision Checklist 19: 1. Waste fuels and used oil fuels are identified as solid wastes so as to encompass all such wastes controlledunder40 CFR261.3, 261.5, and 261.6. Idaho Code § § 4403(19), 4404, 4405, 4406(1), and 4407. IDAPA § 16.01.5005 (261.3, 261.5 and 261.6). 2. Special management standards for generators, transporters, marketers and burners of hazardous waste and used oil burned for energy recovery, as provided in 40 CFR264.340, 265.340, 266.30-35, and 266.40-45. 

# • Idaho Code §§ 39-4404, 4405, and 4406(1). IDAPA §§ 16.01.5008 (264.340), 5009 (265.340) and 5010 (266.30-266.35 and 266.40-266.45). In regard to used oil not regulated by HWMA or the regulations thereunder, state statutes authorize a comprehensive program to safeguard the quality of ground and surfacewaters, including standardsrelating tothe storage, handling and transportation of liquids, such as used oil, which may cause or contribute to water pollution. Idaho Code §§ 39-103(8) and (9), 105(3)(k), and 108(3). State regulations protect ground and surface waters from contamination by used oil and may require corrective action where contaminationoccurs. IDAPA §§ 16.01.2000, et seq. B. State statutes and regulationsprovide the authorityto obtain criminal penalties for violations of the waste fuel and used oil fuel requirements, as provided in 40 CFR266.40-45. Idaho Code § 39-4415

XXI. LAND DISPOSAL RESTRICTIONS 

# • State statutes and regulations provide for the restrictions

-28­

# • of the land disposal of certain spent solvents and dioxincontaining hazardous wastes as indicated in Revision Checklist 34. Idaho Code §§ 39-4403(14), 4404, 4405, 4408(4) and 4423. IDAPA §§ 16.01.5011 (268.30 and 268.31). XXII. MEMORANDUM OFAGREEMENT



# • A. The Director of the Idaho Department of Health and Welfare is statutorily directed and authorized to take all actions not inconsistent with the Idaho HWMA as necessary and feasible to enable the Department to assume andcontinueprimacy overHWMA, pursuanttoRCRA as amended, 42 USC §§ 6901-6987, and to exercise all powers anddischarge all duties expressed in or implied in HWMA. This authority is provided in the context of the express intent of the Idaho Legislature that the state of Idaho enact and carry out a hazardous waste program that will enable·the state to assume primacy overhazardouswaste regUlation fromEPA. Accordingly, the Director of the Idaho Department of Health and Welfare has sufficient authority to enter into and implementtheMemorandum ofAgreement (MOA) attachedto the state of Idaho's request to EPA for authority pursuant to RCRA to conduct a hazardous waste program in lieuofthe federal government. Idaho Code §§ 39-4404 and 4406(1) and (4). B. No state statute, including the Idaho Administrative Procedures Act (APA), requires that the provisions of the MOA be promulgated as a rule. Any procedural requirements referenced in the MOA such as pUblic participation in the state's permitting process 

### (v. C. and D.) and the availability of information to the public (VIII. B. and C.) which are "rules" under the IdahoAPA havebeenpromulgated. Idaho Code §§ 67-5201(7), 5203 and 5204. IDAPA§§ 16.01.5013 and 5750,04. XXIII. TREATMENT DEFINITION Idaho Code § 39-4403(18) defines "treatment" as a process "which is not designed to be an integral part of a production process." This definition is no less stringent than RCRA § 1004(34) (recodified at 40 CFR 

# • 260.10). The plain language quoted above merely emphasizes that "treatment" does not includeproduction

-29­

# • processes (i.e., processes which use nonwastes to createproducts) evenwherethehazardous nature of the nonwaste is reduced. The same limitation on regulatory authority exists inherently in RCRA's definition of "treatment." Under RCRA, "treatment" is limited to processes involving "wastes." RCRA § 1004(34). When a process uses a material and creates a product, that process is not "treatment" because the original material is not "waste." Thus, HWMA excludes production processes involving nonwastes expressly in its definition of "treatment," while RCRA implicitly excludes such processes in its definition of "treatment." Furthermore, the above interpretation of Idaho Code § 39-4403(18) is promulgated at IDAPA § 16.01.5004 (260.10), which is identical to RCRA § 1004(34) and 40 CFR260.10.

PART 3

1. IDENTIFICATIONAND LISTING A. State statutes and regulations define hazardous waste so as to exclude waste water treatment sludges 

# • generated from electroplating operations, 40 CFR 261, Appendix IX, Table 1, as amended in 52 Fed. Reg. 2520 (January 23, 1987) and 52 Fed. Reg. 17401 (May 8, 1987)

. IdahoCode §§ 39-4404, 4405(1), 4406(1) and 4407. IDAPA § 16.01.5005, Appendix IX, Tables 1 and 2. 

### B. State statutes and regulations contain lists of hazardous waste which include spent pickle liquor generatedby steel finishing operations, 40 CFR261.32, as amended in 52 Fed. Reg. 28697 (August 3, 1987). IdahoCode §§ 39-4404, 4405(1), 4406(1) and 4407. IDAPA § 16.01.5005 (261.32). C. State statutes and regulations incorporate additions and updates to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods" (SW-846), 40 CFR 260.11(a) and 270.6(a), as amended in 52 Fed. Reg. 8072 (March 16, 1987). IdahoCode §§ 39-4404, 4405 and 4406(1). 

# • IDAPA §§ 16.01.5004 (260.11(a» and 5012 (270.6(a».

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# • II. CORRECTIVE ACTION state statutes and regulations allow information related to detailed corrective action planning to be developed after permit issuancethrough schedules ofcompliance ina permit, 40 CFR 270.14(c)(7) and (8)(v), as amended in 52 Fed. Reg. 23447 (June 22, 1987). Idaho Code §§ 39-4404, 4405(4), 4406(1),4409(3) and 4411(1). IDAPA § 16.01.5012 (270.14(c)(7) and 270.14(8)(v)). III. STANDARDSFOR FACILITIES State statutes and regUlations require closure/postclosure of interim status surface impoundments to comply with closure/post-closure requirements applicable to permitted surface impoundments, 40 CFR 265.228, as amended in 52 Fed. Reg. 8704 (March 19, 1987). IdahoCode §§ 39-4404, 4405(2) and 4406(1). IDAPA § 16.01.5009 (265.228). 

# • IV . LAND DISPOSAL RESTRICTIONS A. State statutes and regUlations restrict the land disposal ofhazardouswastes containingthe "California list" constituentsabove specified concentrations, 40 CFR 268, as amended in 52 Fed. Reg. 25760 (July 8, 1987)

. IdahoCode §§ 39-4404, 4405 and 4408(4)(a). IDAPA § 16.01.5011 (268.30 and 268.32). Idaho Code § 39-4423 prohibits land disposal of certain hazardous wastes and their constituents at "commercial hazardous waste facilities or sites." In addition, Idaho Code § 39-4408(4)(a) authorizes the Board of Health and Welfare to "prohibit land disposal of any hazardous waste." These provisions taken together, and interpreted in light of Idaho Code § 39­ 4404, authorize the ban on land disposal of any hazardous waste at any facility whether commercial or noncommercial. This authority has been exercised in adopting the above-referenced regUlations, which incorporate the federal restrictions on land disposal ofhazardous wastes and constituents

. 

# •

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# • B. state statutes and regulations exempt farmers from the land disposal restrictions, 40 CFR 262.51, as amended in 52 Fed. Reg. 25760 (July 8, 1987). Idaho Code §§ 39-4404, 4405(2) and 4406(1). IDAPA § 16.01.5006 (262.51). C. state statutes and regulations provide for general waste analysis by permitted and interim status facilities underthe landdisposal restrictions, 40 CFR 264.13(b)(7)(iii) and 265.13(b)(7)(iii), as amended in 52 Fed. Reg. 25760 (July 8, 1987). Idaho Code §§ 39-4404, 4405(2) and (4), 4406(1), 4409(1) and (2), and 4411(1). IDAPA §§ 16.01.5008 (264.13(b)(7)(iii» and 5009 (265.13(b)(7)(iii».



# • D. state statutes and regulationsprovide forminorpermit modifications consistent with the land disposal restrictions, 40 CFR270.42, as amended in 52 Fed. Reg. 25760 (July 8, 1987)

. Idaho Code §§ 39-4404, 4405(2) and (4), 4406(1) and 4409(1)

. " IDAPA § 16.01.5012 (270.42). E. state statutes and regulations do not prohibit changes at interim statushazardous wastemanagement facilities made solely for the purpose of complying with land disposal restrictions, 40 CFR 270.72(e), as amended in 52 Fed. Reg. 25760 (July 8, 1987). Idaho Code §§ 39-4404, 4405(2), 4406(1) and 4409(2). IDAPA § 16.01.5012 (270.72(e».

Datedthis

# ~~ day ofJuly, 1988.

ahoAttorneyGeneral 

# •

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