..--, . 

• Jllll O1989 

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 

Robie Russell
 

Regional Administrator
 

u.s. Environmental Protection Agency
 

Region 10
 

1200 sixth Avenue
 

Seattle, Washington 98101
 

Re:	 Attorney General's Statement for Final Authorization 

Including Changes to the Federal RCRA Program Through 

July 8, 1987 

Dear	 Mr. 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 second paragraphs. 

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 . 

•
 
.­

• Robie Russell 

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 in this statement is made 

to the specific sections of Title 40 of the Code of 

Federal Regulations incorporated by the IDHW 

Hazardous Waste Regulations by use of a parenthetical 

following the IDAPA citation. For example, IDAPA § 

16.01.5005 (261) references the state regulation 

which incorporates the hazardous waste identification 

and listing provision of 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 

provision pertains only to the authority of the Board 

of Health and Welfare to adopt rules 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 

such an instance may therefore be more stringent than 

corresponding EPA regulations until such state 

regulations are repealed or amended in accordance 

with the procedures of the APA. 

2.	 Page 2, I.A. Amend 40 C.F.R. § 262.51 citation in last 

paragraph to 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) of RCRA 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 
• 

Robie Russell 

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 and Welfare 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 also valid. 

Idaho Code § 39-4409(7) authorizes variances 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 situation where EPA 

RCRA regulations, which are adopted by the state, are 

subsequently amended by EPA to be less stringent. In 

such an instance the IDHW Hazardous Waste Regulations 

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 

inconsistent with RCRA. 

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 perform necessary hazardous 

waste inspections . 

•
 
• Robie Russell 

Page 4 

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 Idaho Code § 39-4423(11) citation to 

4423 (1) . 

7 .	 Page 22 , D. 2 . Amend II ••• permanent requirement ... " to " ...permit requirement ...... 

8.	 Page 25, XVI. Add the following new subsection. 

K.	 state statutes require the state to adopt 

interim status granted by RCRA or permits issued 

by EPA prior to state authorization as state 

granted interim status or state granted permits. 

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 status or permits 

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 

state cannot issue a new state permit with terms 

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 adoption by the 

•
 
, , .
 l •. " ,11 ... 

• 

Robie Russell 

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 

liaisons with other governmental entities with regard 

to planning for the control of environmental problems 

and enter into agreements with pubL'ic agencies to 

carry out Department duties. 

10.	 Page 30, XXIII. Add the following to end of paragraph. 

• 

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 SUbject to regulation. 

Sincerely, 

JONES 

ORNEY GENERAL 

JTJ/pg 

•
 
• ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION 

INCLUDING CHANGES TO THE FEDERAL RCRA 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 and Recovery Act (RCRA), as amended by the Hazardous 

and Solid Waste Amendments of 1984 (HSWA) (42 USC 6901, et ~),

and 40 CFR 271, that in my opinion the laws of the state of 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 at the time this Statement is signed. 

For ease of review by the Environmental Protection Agency (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." 

"PART 3" addresses regulatory changes to the Federal RCRA Program

• 

from January 1, 1987 through and including July 8, 1987, which 

are not covered by EPA's existing models. EPA'S recent amendment 

of the "Model" for "Part 2" above (OSWER Directive No. 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" of this Statement through July 8, 1987. 

PART	 1 

I. IDENTIFICATION AND LISTING 

A.	 State .-.-.statutes and regulations define hazardous waste 

so as to control all the hazardous waste controlled 

under 40 CFR 261 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 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. 

Idaho Code § 39-4404. This language is consistent with 

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 and carry out a hazardous waste program that will 

enable the state to assume primacy over hazardous waste 

control from the 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 in effect provide that a 

• 

farmer disposing of waste pesticides from his 

own use which are hazardous wastes is not 

required to comply with the standards 

[applicable to generators of hazardous waste] 

or other standards [regarding hazardous waste 

facility permits, or permitted or interim 

status hazardous waste treatment, 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 on the pesticide 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 interpretation of the farmer 

and rancher exclusion in Idaho Code § 39-4404 as 

codified in Idaho's Hazardous Waste Regulations show 

that Idaho's farmer and rancher exclusion is equivalent 

and consistent with 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 CFR 261 as indicated in Checklist I Band C. 

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 covered by 40 CFR 263 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 

covered by 40 CFR 264 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 

hazardous waste management facilities covered by 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
• Idaho Code §§ 39-4404, 4406(1), and 4409(2). 

IDAPA §§ 16.01.5008 (264.3) and 5009 (Part 265). 

2.	 state law and regulations authorize continued 

operation of hazardous waste management facilities 

provided that owners and operators of such 

facilities comply with standards at least as 

stringent as EPA's interim status standards at 40 

CFR 265. 

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

IDAPA §§ 16.01.5008 (264.3) and 5012 (270.70­

270.73). 

3.	 state law and regulations assure that 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 in Checklist v. 

Idaho Code §§ 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 

consistent with 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 site rather than the builder. This Section does 

not limit responsibility for permit signature, permit 

compliance or hazardous waste management responsibilities to 

only one of either the owner or operator; it simply provides 

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 "unless the owner or operator of the 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 is the operator's duty to obtain a permit, except 

that the owner must also sign the permit application." 40 

CFR 270.10(b). Thus, RCRA and the regulations thereunder do 

not require that both the owner and 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 

facilities under Idaho law is consistent and equivalent with 

federal law. 

• 

The grounds for revocation of hazardous 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 of the HWMA or the Hazardous Waste Regulations. 

Thus, all possible violations of RCRA §§ 3004 and 3005 would 

necessarily result in similar violations of either HWMA or 

the Hazardous Waste Regulations. 

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 omission by 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 of causation 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 

consistent with 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 

other program requirements. 

Idaho Code § 39-4412. 

VII. ENFORCEMENT REMEDIES 

State statutes and regulations provide the following: 

A.	 Authority to restrain immediately, by order or by suit 

in state court, any person from engaging in any 

unauthorized activity which is endangering or causing 

damage to the pUblic health or the environment. 

Idaho Code § 39-4414(3). 

• 

B. Authority to sue in courts of competent jurisdiction to 

enj oin 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 CFR 271.16(a) (2). It is not clear which 

RCRA provision EPA relies upon for this requirement. 

RCRA § 3008(a) permits EPA to seek an injunction 

against any person who "has violated or is in violation 

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 

Waste Regulations is no less stringent. Neither RCRA § 

3008(a) nor any regulations thereunder appear to 

authorize EPA to 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 least the amount of $10,000 per day for 

any program violation. 

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, to bind the federal government. RCRA § 3008(a) 

provides EPA with authority to enforce violations of 

•
 

-7­
• 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 

inconsistent with RCRA. 

D.	 Authority to obtain criminal penalties in at least the 

amount of $10,000 per day for each violation, and 

imprisonment for at least six months against any person 

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, or used for the purposes of 

program compliance. 

Idaho Code § 39-4415. 

• 

Idaho Code § 39-4415(2) authorizes criminal prosecution 

of any person who knowingly violates any provision of 

the Hazardous Waste Regulations. A criminal 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) which prohibits a 

transporter from accepting "hazardous waste from a 

generator unless it is accompanied by a manifest" 

prepared by the generator in accordance with 40 CFR 262 

which requires the designation of a permitted hazardous 

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, the transporter would have had 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 of these possibilities. 

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 

in Section VII A, B, and C above by any interested person. 

•	 

Idaho Code § 39-4416(2). 

-8­
• Idaho Rules of civil 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 

interested person may intervene as provided in Rule 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 

intervention provided under RCRA § 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 INDIAN LANDS 

• The state does not seek hazardous waste jurisdiction over 

Indian lands pursuant to RCRA. 

PART	 2 

1. IDENTIFICATION AND LISTING 

A.	 State statutes and regUlations contain lists of 

hazardous wastes which encompass all wastes controlled 

under the following Federal RegUlations as indicated in 

the designated Revision Checklists: 

1.	 Chlorinated aliphatic hydrocarbons, 

40 CFR 261.31, as amended February 10, 1984, 

Revision Checklist 4. 

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

IDAPA § 16.01.5005 (261.31) . 

•
 

-9­
•
 2. Warfarin and zinc phosphide listing, 40 CFR
 

261.33(e) and (f), as amended May 10, 1984,
 

Revision Checklist 7.
 

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

IDAPA § 16.01.5005 (261.33).
 

3.	 TDI, DNT and TDA wastes, 40 CFR 261.32 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 CFR 261.32, 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 CFR 261.31 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 CFR 261.32, as 

amended May 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 

Appendix VIII, as amended August 6, 1986, Revision 

Checklist 29. 

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

-10­
• IDAPA § 16.01.5005 (261.33).
 

9. EBDC wastes, 40 CFR 261.32, as amended October 24,
 

1986, Revision Checklist 33. 

Idaho Code §§ 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 quantity generators to certify good 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 state must 

consider whether any listing factor, including 

additional constituents, other than those for 

which the waste was listed would cause the waste 

to be hazardous. 

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 by November 8, 1986. 

-11­
• 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 in Revision 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 CFR 261.4(b) (1), as 

amended November 13, 1984, and as indicated in Revision 

Checklist 9. 

Idaho Code §§ 39-4403(7) and 4407. 

I DAPA § 16. 01. 5005 ( 261. 4 (b) (1) ) . 

• 

F. state statutes and regUlations incorporate the most 

recent edition and updates to "Test Methods for 

Evaluating Solid Waste, Physical/Chemical Methods" (sw846) as indicated in Revision 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 

mixed wastes. 

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 greater than the similar exceptions provided by RCRA 

§ 1004 (27) . Accordingly, as under federal law, the 

hazardous waste components of mixed hazardous and 

exempt radioactive waste constitute "hazardous waste" 

regulated under Idaho law. 

II. DEFINITION OF SOLID WASTE 

•	 

state statutes and regUlations define hazardous waste and 

-12­
• impose management standards so as to control all the 

hazardous waste controlled under 40 CFR, Parts 261, 264, 265 

and 266, as amended January 4, 1985, April 11, 1985, and 

August 20, 1985, as indicated in Revision 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 subtitle C of RCRA even though HWMA, unlike RCRA, 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 appear to require Idaho to regulate non-hazardous 

wastes to obtain authorization to administer and enforce a 

"hazardous waste program" in lieu of the 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, shall not be used for dust suppression or road
 

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, and disposal
 

of hazardous wastes." Idaho Code § 39-4403(8). Thus,
 

-13­
•	 commonly recognized recycling 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 

substance consistent with federal regulations adopted by the 

[EPA] to implement RCRA" (Id.) authorizes the regulation of 

recycling in a manner identical to federal regulation in 

order to obtain authorization of RCRA § 3006. 

Furthermore, the Idaho hazardous waste management program is 

equivalent and consistent with the federal program in the 

area of non-hazardous wastes in that Idaho's Hazardous Waste 

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 hazardous waste/solid waste dichotomy and provisions 

identical to federal requirements with respect to nonhazardous and solid wastes. 

• III. MANAGEMENT OF DIOXIN WASTES 

State statutes and regulations contain the following 

requirements regarding dioxin wastes as indicated in 

Revision Checklist 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 

applicable to interim status facilities, as provided 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. SATELLITE ACCUMULATION 

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 

generator complies with the requirements specified in 40 CFR 

262.34(c) as indicated in Revision Checklist 12. 

Idaho Code §§ 33-4403(6), 4404, 4405(2) and 4409(1). 

IDAPA § 16.01.5006 (262.34(C». 

V. APPLICABILITY OF INTERIM STATUS STANDARDS 

State statutes and regulations require facilities 

identified in 40 CFR 265.1(b) to comply with interim status 

standards as indicated in Revision 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 in Revision 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. NATIONAL UNIFORM MANIFEST 

State statutes and regulations require generators to use the 

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. BIENNIAL REPORT 

state statutes and regulations contain the following 

reporting requirements as indicated in Revision Checklists 1 

and 30. 

A.	 The biennial report contains the information indicated 

in 40 CFR 262.41(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 CFR 265.94. 

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 and toxicity of wastes. 

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 

generated must contain a certification by the permittee 

regarding efforts taken to minimize the amount and 

toxicity of generated wastes. 

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 

and May 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 and May 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 prior to May 8, ~985, only if the requirements 

of 40 CFR 264.314(a) and 265.314(a) are met . 

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 in Revision 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 allow variances from the 

groundwater monitoring requirements as provided in 

Section 3004(p). However, these variances are 

• 

restricted as provided in RCRA § 3004(p) • 

-17­
• 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 and market 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 of when the waste was placed in the unit, in 

all permits issued after November 8, 1984, as indicated 

in Revision 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) . 

-18­
• 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 

receive hazardous waste after July 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 

corrective action on­ and off-site. 

Idaho Code § 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 in Revision 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 to which RCRA § 7010(a) applies. 

Idaho Code §§ 39-4403(5) and (14), 4404, 4406(1), 

44 08 (4) (a) and 442 3 (11) . 

• 

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

-19­
• B. Effective November 8, 1984, state statutes and 

regulations prohibit the placement of any 

noncontainerized or bulk liquid hazardous waste in any 

salt dome or salt bed formation or any underground mine 

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 in Revision 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 likely to be solvent at 

the time of jUdgment. 

Idaho Code § 39-4413(B). 

E.	 state statutes and regulations require the permittee to 

take steps to minimize releases to the environment in 

accordance with 40 CFR 270.30 (d) as amended September 

1, 1983, as indicated in Revision 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 in Revision Checklist 15. 

Idaho Code §§ 39-4403(5), 4404, 4405(2) and 4409(2). 

•	 IDAPA § 16.01.5009 (Subpart G, 265.310 and 265.315). 

-20­
• 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 in Revision 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 in Revision 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 in Revision 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 (Subpart J) and 5009 (Subpart J). 

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 

with Revision 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 

such permits as necessary to ensure compliance with the 

requirements of 40 CFR, Parts 264, 266 and 270, as 

-21­
indicated in Revision Checklist 17N. • Idaho Code § 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 

Revision Checklist 170. 

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

IDAPA § 16.01.5012 (270.32). 

D. state statutes and regulations require that: 

• 

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. 

Idaho Code §§ 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 

-22­
Checklist 17P. • Idaho Code §§ 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 for termination of 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 

automatic termination of interim status. 

• 

4. Interim status terminates for any facility other 

than a land disposal or an incinerator by November 

8, 1992 unless the owner/operator submits a Part B 

application by November 8, 1988, as indicated in 

Revision Checklist 17P. See above discussion 

regarding automatic termination without appeal. 

Idaho Code §§ 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. 

Idaho Code §§ 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 

in Revision 17P. 

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

•	 IDAPA § 16.01.5012 (270.70(c». 

-23­
• G. state statutes and regulations allow the issuance of a 

one-year research, development and demonstration permit 

(renewable 3 x) for any hazardous waste treatment 

facility which proposes an innovative and experimental 

hazardous waste treatment technology or process not yet 

regulated as indicated in the Revision Checklist 17Q. 

However, the state requires the facility to meet RCRA's 

financial responsibility and pUblic participation 

requirements and retains authority to terminate 

experimental activity if necessary to protect health or 

the environment. 

Idaho Code § 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 

groundwater monitoring, unsaturated zone monitoring 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 

monitoring requirements applicable to new units by 

November 8, 1988, or the 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). 

Idaho Code § 39-4409(2). 

Notably, the requirements of 3005(j) (6) do not yet 

appear in	 federal regulations and, therefore, have 

not been incorporated by reference into Idaho 

• 

regulations. However, amendments to HWMA 

effective JUly 1, 1988 authorize the promulgation 

-24­
• 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 in RCRA § 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 in Revision Checklist 17H. 

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

4409(7) . 

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

•
 

-25­
• 2. Facilities which comply in good faith need not 

retrofit at permit issuance unless the liner is 

leaking as provided in 40 CFR 265.221(e) and 

265.301(e) as indicated in Revision 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 CFR 265.221(c) and 265.301(c) as indicated in 

Revision Checklist 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 allow the state to make 

assessment information available to the Agency for 

Toxic Substances and Disease Registry. 

Idaho Code § 39-4411(3). 

IDAPA § 16.01.5750.06. 

XIX. AVAILABILITY OF INFORMATION 

State statutes and regulations provide 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. 

•	 Idaho Code §§ 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
 

upon request regardless of whether any justification or 

need for such records has been shown by the requester. 

Idaho Code §§ 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 publ Lc 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 regular operating budget. 

Idaho Code §§ 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 in Revision Checklist 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 CFR Part 2 and Revision 

Checklist 26. 

Idaho Code § 39-4411(3). 

IDAPA § 16.01.5750,03(a). 

•
 

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• xx. BURNING OF WASTE FUEL AND USED OIL IN BOILERS AND 

INDUSTRIAL FURNACES 

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 

controlled under 40 CFR 261.3, 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 CFR 264.340, 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 surface waters, including standards relating 

to the 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 

contamination occurs. IDAPA §§ 16.01.2000, et seq. 

B.	 State statutes and regulations provide the authority to 

obtain criminal penalties for violations of the waste 

fuel and used oil fuel requirements, as provided in 40 

CFR 266.40-45. 

Idaho Code § 39-4415 

XXI. LAND DISPOSAL RESTRICTIONS 

•	 State statutes and regulations provide for the restrictions 

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• 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 OF AGREEMENT 

• 

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 and continue primacy over HWMA, pursuant to RCRA 

as amended, 42 USC §§ 6901-6987, and to exercise all 

powers and discharge 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 

over hazardous waste regUlation from EPA. Accordingly, 

the Director of the Idaho Department of Health and 

Welfare has sufficient authority to enter into and 

implement the Memorandum of Agreement (MOA) attached to 

the state of Idaho's request to EPA for authority 

pursuant to RCRA to conduct a hazardous waste program 

in lieu of the 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 

Idaho APA have been promulgated. 

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 include production 

-29­
• processes (i.e., processes which use nonwastes to 

create products) even where the hazardous 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 CFR 260.10. 

PART 3 

1. IDENTIFICATION AND 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) . 

Idaho Code §§ 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 

generated by steel finishing operations, 40 CFR 261.32, 

as amended in 52 Fed. Reg. 28697 (August 3, 1987). 

Idaho Code §§ 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). 

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

• 

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

-30­
• II. CORRECTIVE ACTION 

state statutes and regulations allow information related to 

detailed corrective action planning to be developed after 

permit issuance through schedules of compliance in a 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. STANDARDS	 FOR 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). 

Idaho Code §§ 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 of hazardous wastes containing the "California 

list" constituents	 above specified concentrations, 40 

CFR 268, as amended in 52 Fed. Reg. 25760 (July 8, 

1987) . 

Idaho Code §§ 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 

of hazardous wastes and constituents . 

•
 

-31­
• 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 under the land disposal 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 regulations provide for minor permit 

modifications consistent with the land disposal 

restrictions, 40 CFR 270.42, 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 status hazardous waste management 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». 

Dated this ~~ day of July, 1988. 

aho Attorney General 

• 

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