•• 

.' -.,-.i' 

•
 IDAHO CODE
 

CONTAINING THE 

GENERAL LAWS OF IDAHO
 

ANNOTATED
 I 

ORIGINALLY PUBLISHED BY AUTHORITY OF 

LAWS 1947, CHAPTER 224 

REPUBLISHED BY AUTHORITY OF 

LAWS 1949, CHAPTER 167 AS AMENDED 

• Compiled Under the Supervision of the 

Idaho Code Commission 

PHILLIP M. BARBER
 

WILLIS E. SULLIVAN JESS B. HAWLEY, JR.
 

COMMISSIONERS
 

VOLUME SEVEN A .- : .. 

THE MICHIE COMPANY
 

Law Publishers 

CHARLOTTESVILLE, VIRGINIA 
• 

\ 

-, 

COPYRIGHT © 1948, 1961, 1977, 1985
 

BY
 

THE MICHIE COMPANY
 

All rights reserved. 

• 

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• PUBLISHER'S NOTE 

Since the publication in 1977 of revised Volume 7A, many of the laws 

contained therein have been amended or repealed and many new laws have 

been enacted. The laws in Title 40 concerning highways and bridges were 

entirely repealed and replaced in 1985 and parallel reference tables have 

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

the former statutes is now codified and where the subject matter of the 

present statutes was formerly codified. Accordingly, this replacement 

volume is issued with the approval and under the direction of the Idaho 

Code Commission. Volume 7A contains the laws governing health and 

safety and highways and bridges. 

This replacement volume contains laws enacted by the Idaho legislature 

through the 1985 regular session and annotations of cases interpreting the 

Idaho Code from the following sources: 

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

Federal Supplement through Volume 601, p. 1037.
 

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

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

through Volume 83, p. 985. 

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

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

throughout the Idaho Code. 

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

I.C.R. Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

I.J.R. Idaho Juvenile Rules 

I.A.R. Idaho Appellate Rules :' 

I.C.A.R. Idaho Court Administrative Rules 

I.I.R. Idaho Infraction Rules 

I.R.E . Idaho Rules of Evidence 

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: t iii 

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, .. .... 110-.

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,I: 

,J,. ADJOURNMENT DATES OF SESSIONS OF 

LEGISLATURE 

Article 3, § 22 of the Idaho State Constitution provides: "No act shall 

take effect until sixty days from the end of the session at which the same 

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

be declared in the preamble or in the body ofthe law." 

Section 67-510 Idaho Code provides: "No act shall take effect until July 1 

of the year of the regular session or sixty (60) days from the end of the 

session at which the same shall have been passed, whichever date occurs 

last, except in case of emergency, which emergency shall be declared in the 

preamble or body of the law. 

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

effect from its passage." 

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

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

with a minimum of delay. 

Year 

1921 

1923 

1925 

1927 

1929 

1931 

1931 (E. S.) 

1933 

1933 (E. S.) 

1935 

1935 (1st E. S.) 

1935 (2nd E. S.) 

1936 (Srd E. S.) 

1937 

1937 (E. S.) 

1939 

1941 

1943 

1944 (Ist E. S.) 

1944 (2nd E. S.) 

1945 

1946 (Ist E. S.) 

1946 (2nd E. S.) 

, 1947 

1949 

1950 (E. S.) 

1951 

1952 (Lst E. S.) 

Adjournment Date 

March 5, 1921 

March 9,1923 

March 5, 1925 

March 3, 1927 

March 7, 1929 

March 5, 1931 

March 13, 1931 

March 1, 1933 

June 22, 1933 

March 8, 1935 

March 20, 1935 

:........................................ July 10, 1935 

July 31, 1936 

March 6, 1937 

November 30, 1938 

March 2, 1939 

March 8, 1941 

February 28, 1943 

March 1, 1944 

March 4, 1944 

March 9,1945 

.. .. March 7, 1946 

March 7,1946 

March 7, 1947 

March 4, 1949 

February 25, 1950 

March 12, 1951 

January 16, 1952 

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v 
• 

vi ADJOURNMENT DATES 

Year Adjournment Date 

1953 March 6, 1953 

1955 March 5, 1955 

• 

1957 March 16, 1957 

1959 March 9, 1959 

1961 March 2, 1961 

1961 (1st E. S.) August 4, 1961 

1963 March 19, 1963 

1964 (E."8,) August 1, 1964 

1965 March 18; 1965 

1965 (1st E. S.) :...... March 25, 1965 

1966 (2nd E. S,) March 5, 1966 

1966 (3rd E. S,) March 17, 1966 

1967 March 31, 1967 

1967 (1st E. S.) June 23,1967 

1968 (2nd E. S,) February 9,1968 

1969 March 27,1969 

1970 March 7,1970 

1971 .. : 'March 19, '1971. 

1971 (E. S,) April 8, 1971 

1972 ;........... March 25, 1972 

1973 March 13, 1973 

1974 March 30,1974 

1975 March 22, 1975 

1976 March 19, 1976 

1977 March 21, 1977. 

1978 March 18, 1978 

1979 March 26, 1979 

1980 '............................... March 31, 1980
 

1981 March 27,'1981: 

1981 (E. S,) July 21, 1981 

1982 March 24,1982" 

1983 April 14, 1983, 

1983 (E. S.) '. May 11, 1983 

1984 :............................ March 31,1984
 

1985 March 13, 1985 

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•	 

299 HAZARDOUS WASTE MANAGEMENT 39-4402 

CHAPTER 44 

I	 HAZARDOUS WASTE MANAGEMENT 

I

I 

SECTION.	 SECTION. 

I
 39-4401. Short title.	 39-4416. Citizen suits.
 

39-4402. Legislative findings and purposes. 39-4417. Hazardous .waste emergency acI 39-4403. Definitions. count. 

I	 39-4404. Consistency with federal law. 39-4417B. Hazardous waste training, emer­ 39-4405. Rules and regulations in general. gency and monitoring ac­ 39-4406. General powers and duties of di­ count. 

rector. 39-4418. Local government notice. 39-4407. Identification of hazardous wastes. , 39-4419. Interstate cooperation. 39-4408. Unauthorized treatment, storage, 39-4420. Employment security. '1	 release, or disposal of hazard­ 39-4421. Goodsamaritan protection. ous waste prohibited. 39-4422. Severability. 39-4409. Permit requirements for hazard­ I
 39-4426. Appointment of health inspectors.
 ous waste treatment storage, 39-4427. Hazardous waste disposal fee. or disposal facilities. I	 39-4428. -Collection of fees --- Returns. 39-4410. Transportation of' hazardous I	 waste. 39-4429. Books and records to be preserved

I .- Entry and .Inspection by !	 39-4411. Records ---.,. Reporting - Monitor­

'.. !. . . ing.. . '. . '. department of health and wel- .. 

39~4412. Inspections·- Right of entry. fare. 

39-4413. Enforcement procedures. 39·4430. Additions and penalties. 

39-4414. Remedies. 39-4431. Collection and enforcement. 

39-4:415. Violations constituting misde­ 39-4432. Distribution of hazardous waste 

meanors. disposal fee revenues. 

01. Short title. - This act may be known and cited as th/

• 

us Waste Management Act of 1983." [I.C., § ,39~4401, as add "by 

1983, ch. l' ,§ 1; p. 416.] 

Compiler's note 

refer to S.L. 1983, c . 154, § 1 which 

compiled as §§ 39-4401 thr gh 39-4422. 

39-4402~ Legislative (1) The legislature of 

the State of Idaho finds: 

(a) That continuing technologi I progress . creases in manufacturing, 

and the abatement of air and er p ution have resulted in everincreasing quantities of hazardous wa e; 

(b) That the public health and afe . and the environment, are 

i threatened when hazardous wast s are not anaged in an environmenti 

i ally sound manner; ! 

I (c) That the knowledge an 

I

I health, environmental nd aesthetic impacts res ing from current . 

hazardous waste m agement and disposal practic generally i available; and i

I (d) That the p lem of proper management of hazardous 

i become a rna r of great statewide concern. 

(2) There e, it is hereby declared that the purposes of this ac re: \ (a) To roteet the public health and safety, the health of livi i 

i org sms, and the environment from the effects of the improper, 

f i dequate, or unsound management of hazardous waste; 

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39-4403	 HEALTH AND SAFETY 300 

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

; ! t e time they are generated through transportation, treatment, storage, . 

! an disposal; and, , / 

l

t! (c) assure' the safe and adequate management of hazardous 'Y'astes 

!	 withi 

H 

'I Compiler' notes. ·For words "this act," Applicability of 

'! see Compiler's otes, § 39-440l. waste disposal ;, .Collateral erences. Validity and construction of stat s, ordinances, or regula­ 11 

:1	 tions controlling ischarge of industrial 

wastes into sewer sy tems. 47 A.L.R.3d 1224. H 

,I 

., .	 . d

. 39-4403. Defin .ons. - As used in this chapter: 

:i (1) "Board" means he Idaho board of health and we 

H .(2) "Commercial h rdous waste facility or site" eans any hazardous 

J waste facility whose pri ary business isthe treat nt, storage or disposal, 

q .for a fee or other consid ation, 'of hazardous w, ste generated. offsite by H· . ·.generators otl'ier'than the 0 ner andoperatoro he facility. . j 

:1 (3) "Department" means e Idaho depart ent of health and welfare. ',1 

:1	 (4) "Director" means the di ctor of the I aho department of health and 

11 welfare or the director's authori d agent. 

11 (5) "Disposal" means the disch ge, d osit, injection, dumping, spilling, i 

-q	 leaking or placing of any hazardo w ste into or on any land or water so 

" that such hazardous waste or an constituent thereof may enter the i 

zoning re 

facilities of 

governmental entities. 59 A. 

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

environment or. be emitted into t e ir or discharged .into any waters, 

including ground wafers. 

(6) "Generator" means any pe son, wh by virtue of ownership, management, or control, is responsib for causi or allowing to be caused the 

creation of a hazardous wast . 

. ' (7) "Hazardous waste". ans a waste or co bination or wastes of a solid, 

liquid, semisolid, or cont ned gaseous form wH' h.Because of its quantity, 

concentration or charac ristics (physical, chemic lor biological) may: 

. (a) Cause or signifi antly contribute to an in rease in deaths or an 

increase in seriou , irreversible or incapacitating eversible illnesses; or 

(b) Pose a subst tial threat to human health or the environment if 

improperly treed, stored, disposed of,'or managed. ch wastes include, 

but are not li ited to, materials which are toxic, corr sive, ignitible, or 

reactive, 0 materials which may have mutagenic, teratogenic, or 

carcinoge c properties but do not include solid or dissol d material in 

domesti sewage, or solid or dissolved materials in irrigatio return flows 

or ind strial discharges which are point sources' subject national 

poUu on discharge elimination system permits under the Fed al Water 

Pol tion Control Act, as amended, 33 U.S.C., Section 1251 e seq., or 

so rce, special nuclear, or by-product material as defined by the tomic 

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

(8) "Hazardous waste management" means the systematic control 0 the 

ollection, source separation, storage, treatment, transportation, proc sing, and disposal of hazardous wastes. 
•
 

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301 HAZARDOUS WASTE MANAGEMENT 39-4403 

~9) "Hazardous waste facility or site" means any property, structuz:e, 

anc ary equipment intended or used for the transportation, treatm t, 

stora or disposal of hazardouswastes. 

(10)' anifest" means a form used for identifying the quantity, c position, ori ,routing, waste identification coders), and desti ation of 

hazardous ste during any transportation from the point of g eration to 

the point oftr tment, storage or disposal. 

(11) "Person" eans any individual, association, partner ip, firm, joint 

stock company, st, estate, political subdivision, blic or private 

corporation, state 0 ederal governmental departmen , agency, or instrumentality, or any otH legal entity which is reco 'zed by law as the 

subject of rights and dub . 

(12) "RCRA" means th Resource 

1976 as amended in 1978 an 980. 

(13) "Storage" means the ontainment of hazardous wastes, on a 

temporary basis or for a perio of year , in such a manner as not to 

constitute disposal of such hazardo wa es. 

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

from a hazardous waste facility or si 

(15) "Transporter" means any rson 0 transports a hazardous waste 

to or from a hazardous waste fa . ity or site. 

(16) "Treatment" means a y method, tec ique, or process, including 

neutralization, which is de 'gned not to be an i tegral part of a production 

process, but which is rat r designed to change e physical, chemical, or 

biological character or mposition of any hazardou waste prior to storage 

or final disposal so,as 0 neutralize such waste or so a 0 render such waste 

nonhazardous or I s hazardous; safer to transport, sto ,or dispose of; or 

amenable for re very, amenable for storage or reduce in volume. Such 

term includes ny activity or processing designed to chan the physical 

form or ch ical composition of hazardous waste so as 

ich is 

0 render it 

nonhazard s. 

(17)" aste" means any solid, semisolid,liquid or containe 

mater' I for which no reasonable use or reuse is intended or 

inte ded to be discarded. [I.C., § 39-4403, as added by 1983, ch. 154, § 

4 ; am. 1984, ch. 205, § 1, p. 502.] 

Compiler's notes. The Resource Conservation and Recovery Act of 1976, referred to 

in subdivision (12) of this section, is compiled 

as 42 U.S.C. § 6901 et seq. 

Section 2 of S.L. 1984, ch. 205 is compiled as § 39-4410. . 

Cross ref. Inspection of hazardous waste 

carriers, §§ 67-2929,67-2930. 

Sec. to sec. ref. This section is referred to 

in §§ 18-3905,67-2929. 

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39-4404 HEALTH AND SAFETY 302 

3 -4404. Consistency with federal law. - The legislature inten 

e state of Idaho enact and carry out a hazardous waste program t at 

will e ble the state to assume primacy over hazardous waste control om 

the fede al government. 

The Ie islature finds that the RCRA, as amended, 42 U.S.C., ection 

6901 et se , and regulations adopted pursuant thereto, establish complex 

and detaile provisions for regulation of those who generate, ransport, 

treat, store, nd dispose of hazardous wastes. The legisla re cannot 

conveniently 0 advantageously set forth in this chapter al the requirements of all of th regulations which have been or will be est lished under 

RCRA. However, I::l the provisions of this chapter, the legi ature desires to 

avoid the existence of duplicative, overlapping or con icting state and 

federal regulatory sys ms. 

Therefore, the boar is directed to promulgate r es and regulations 

which are in substance nsistent with federal regu tions adopted by the 

administrator of the Uni d States environment protection agency to 

implement RCRA. The boa d may not promulg e rules and regulations I 

J 

governing activities affected such federal re lations until at least six 

I (6) months after the promulga .on of such re ations by the environmen­

'j tal protection agency. The six ) months' lay shall apply, but not, be I limited, to rules and regulatio s concer ing mining waste, mineral 1 

I 

processing waste, and all other mat ials der study by the administrator I 

of the environmental protection age y s required by 42 U.s.C. sections 

6982(f) and 6982(p). Until such time the board has promulgated rules 

and' regulations concerning mining mineral wastes and materials 

under study by the administrator, t se stes and materials shall not be 

; considered or defined as hazardous astes der this chapter. Farmers and I ranchers who treat, store, or ispose of aste pesticides from their 

operations on lands owned or c trolled by til m shall not be required by 

] board rules or regulations to d anything more f an follow the instructions 

on the pesticide label and tri e rinse empty cont iners in accordance with 

EI

Iii'

the RCRA regulations of t environmental prote ion agency. The board 

!\

.. may not promulgate any e or regulation that wou impose conditions or 

,t lt requirements more stri ent or broader in scope tha the RCRA regulan tions of the environm tal protection agency. The bo rd may, however, h promulgate procedur rules and regulations and rule and regulations

l( specifically authori d by this chapter or other state atutes without 

\i showing that thos rules and regulations are required b RCRA or the 

1 regulations of th environmental protection agency; provid that those 1 rules and regul ions shall not conflict with this section, othe sections of l this chapter, RA, or the rules and regulations of the envi onmental i

1,:

protection ag cy. Any rule or regulation promulgated by the bo d shall 

li' be valid unti it is repealed or modified through the administrative rocess !j' If .

-1 ,

' of section -5201, Idaho Code, et seq. [I.C., § 39-4404, as added by 983, 

, ch. 154, § 1, p. 416.]
 

I
 

'I 05. Rules and regulations in general. 

- Pursuant to th
 

I:! ures established by the Idaho administrative procedures act, chapter 

w 
•	 

303 HAZARDOUS WASTE MANAGEMENT 39-4407 

title 67, Idaho Code, the board shall adopt such rules and regulations as 

are ecessary and feasible for the management of the post generati 

handli ,collection, transportation, treatment, storage, and dispo of 

hazardou astes within the state. The rules and regulations pro lgated 

by the boar all be a part of this code and shall have the for and effect 

of law. Such r es and regulations shall include, but no elimited to: 

(1) Criteria for e determination of whether any wa e or combination I of wastes is hazardou or the purposes of this chapter i 

I

I (2) Rules and regulati s for those who genera ,transport, treat, store, 

or dispose of hazardous was I 

(3) Rules and regulations, nsistent wi those issued by the United 

States environmental protection ency nd the United States department 

of transportation, for containerizatio labeling and manifesting of hazard­

! 

i I 

ous wastes; I	 . (4) Rules and regulations ecifying t terms and conditions under 1	 I which the department sh issue, modify, s end, revoke, or deny such i 

permits as shall be req . ed by this chapter; 

(5) Lists of thos astes or combinations of astes which are not 

compatible and w ch may not be stored or disposed of ether; 

(6) Procedu s and requirements for the reporting 0 the generation, 

transporta . n, treatment, storage or disposal of hazardous stes; 

•	 

(7) R es and regulations establishing standards and proce es for the 

trai	 . g of personnel at generation sites and at hazardous waste cilities 

sites. [I.C., § 39-4405, as added by 1983, ch. 154, § 1, p. 416.J 

Sec. to sec. ref. This section is referred to 

in § 39-4411. 

39·4406. General powers and duties of director. - The director: 

(1) Shall take all actions not inconsistent with this chapter as are 

necessary and feasible to enable the department to assume and continue 

primacy over hazardous waste management, pursuant to the RCRA as 

amended, 42 U.S.C., Sections 6901-6987; 

(2) May conduct and publish studies of hazardous waste management in i this state; 

I 

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

effective management of hazardous wastes within this state. Such a plan 

may identify those locations in the state which are not suitable for the 

establishment of hazardous waste treatment or disposal facilities or sites; i 

I (4) Shall exercise all powers and discharge all duties expressed in or 

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

1983, ch. 154, § 1, p. 416.] I 

i 

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

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

t	 hazardous or nonhazardous, for the purposes of this chapter. Any waste 

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39-4408 HEALTH AND SAFETY 304 

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

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

the board in a list of hazardous wastes. 

(2) The board may adopt, and amend from time to time a list or lists of 

hazardous wastes. The board may, with public notice but without the 

necessity of a public hearing, list as hazardous any waste or combination of 

wastes determined to be hazardous by. the United States environmental 

protection agency. [l.C., § 39-4407, as added by 1983, ch. 154, § 1, p. 416.] 

Sec. to sec. ref. This section is referred to 

in § 39-4411. 

3 -4408. Unauthorized treatment, storage, release, or disposal f 

ous waste prohibited. - No person shall treat or store hazar ous 

waste, r shall any person discharge, incinerate, release, spill, pI ce, or 

dispose a hazardous waste in such a manner that the wast or any 

constituent ere of, may enter the environment, unless the depa ment has 

issued said p son a permit or a variance as required for the specific 

activity involve or exempted the activity from permit req . ements. [I.C., 

§ 39-4408, as add by 1983, ch. 154, § 1, p. 416.J 

39-4409. Permit quirements for hazardo waste treatment 

storage, or disposal fa ilities. - (1) No person all construct, operate, 

or modify a hazardous wa e treatment, storage, r disposal facility or site 

without a permit from the de artment. The 0 r or operator of the facility 

or site rather than the builder all be respo ible for obtaining the permit. 

The board may exempt classes 0 categori of hazardous waste treatment, 

storage, or disposal facilities from e pe it requirement if the exemption 

is in the public interest and consiste ith RCRA requirements. The fact 

that a class or category of such facili is not required to obtain a federal 

permit shall be persuasive evide e th an exemption is in the public 

interest. Interim status granted y RCRA a permit issued by the United 

States environmental protect' n agency pri to the date that the state 

program is authorized by th administrator of at agency shall be adopted 

by the department as a st e granted interim st us or as a state granted 

permit until the depart nt issues a new state pe it, 

(2) The board shall romulgate rules and regula ions establishing the 

terms and conditio for issuing permits to the desc 'bed facilities and 

sites. The rules d regulations shall provide for, but ot be limited to: 

(a) Standards nd procedures for the safe operation and aintenance of 

the facilitie and sites; 

(b) Educ on and training qualifications of personnel at t e facilities 

and site; 

(c) C9utractual commitment or consent to each facility or site om all 

holders of interests in the real property committed to that facility 0 site; 

(q(Monetary assurances in such form and amount as are necessary or 

l ffective management, maintenance, and monitoring of the facilities an 

sites during and after operation; 

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t·· 

305 HAZARDOUS WASTE MANAGEMENT 39-4410 

(e) Liability insurance in such form and amount as is necessary
 

c pensate for potential damages caused by the facilities and si es;
 

pro .ded, that liability insurance shall not be required in the eve that
 

liabili insurance is not required by the federal regulation adopted
 

pursuan 0 the RCRA;
 

(f) Emerge equipment and emergency response plan
 

the facilities a d sites;
 

(g) Public parti . ation in the 'permitting proces consistent with 42 

U.S.C. section 697 ). 

(3) Permits shall be i ued for a period not to ceed ten (10) years or the
 

maximum period allowe under RCRA, w ichever is greater. Permits
 

issued to hazardous waste fac 'ties and sit by the department prior to the
 

effective date [July 1, 1983] 0 his ch ter shall be reissued to conform
 

with the provisions of this chapte a the rules and regulations promul­


gated under this chapter.
 

(4) Any permit issued under is sect n may be revoked by the director,
 

pursuant to the provisions 0 ection 39-4 3, Idaho Code, if the permitted
 

party fails to comply wi the terms and nditions of the permit, this
 

chapter, or the rules a regulations promulgat under this chapter.
 

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

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

the director, plication of the requirements would use unreasonable
 

hardship a the granting of a variance would not be ha ul to the public
 

interest inconsistent with RCRA requirements. A vari ce shall not
 

excee ne (1) year in duration and may be renewed or extende only after
 

the epartment provides public notice and an opportunity public
 

mment. [I.C., § 39-4409, as added by 1983, ch. 154, § 1, p. 416.] 

Sec. to sec. ref. This section is referred to
 

in §§ 39-4426,39-4427.
 

3 - 10. Transportation of hazardous waste. - (1) The board shal 

promulga hazardous waste transportation rules and regulatio to 

control the in tate and interstate transportation of federall egulated 

types and quantitie hazardous waste. The rules and re tions shall be 

consistent with the ru and regulations issued he United States 

department of transportation d the United St s environmental protec­ ::

tion agency. The rules and regula' ns s also be consistent with the .' 

rules and regulations of the Idaho p tilities commission unless such 

consistency would impair the . acy or t effectiveness of the state's 

.hazardous waste managem program. In that c the board shall confer 

with the commission endeavor to develop mutua acceptable trans-' 

portation rules regulations. If mutually acceptable ru and regula­

!,

tions canno developed, the board shall promulgate transport . n rules 

I I 

I. and re ations that minimize conflict with the commission's rule nd ,. 

ations while assuring the primary authority and effectiveness of th I' 

I 
39-4410 HEALTH AND SAFETY 306 • ate's hazardous waste management program. Rules and regulations 

p mulgated by the board shall prevail over conflicting rules and re 

•
 

tio ofthe commission. 

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

to all ansporters of federally regulated types and quantities of h ardous 

waste nerated either by themselves or by others. These r les and 

regulatio shall apply to any movement of hazardous wastes t or from a 

hazardous aste facility or site. 

.	 (3) The h ardous waste transportation rules and re 

provide for bu ot be limited to: 

(a) Standard or the containerization and labeling of 

(b) Standards or the handling and placarding of
 

shipments;
 

(c) A hazardous w te tracking system requiring t t: 

(i) All transport s of federal regulated ty es and quantities of 

hazardous waste obt in an identification numb r from the department, 

the environmental pro ction agency, or anoth approved state program, . 

before accepting hazardo s waste for transpo ; 

(ii) All shipments of derally regulat d types and quantities of 

hazardous waste to be sn' ped off site or received from off site be 

.accompanied by a	 manifest r similar orm describing the hazardous 

waste being shipped and its de inatio 

(iii) A copy of each manife or similar form be returned to the 

generator and/or originator of the pment and a copy be retained by the 

transporter for a minimum ofthre 3) years. 

(4) The hazardous waste tran 0 tion rules and regulations may 

provide for special routing of haz dous aste shipments in this state when 

necessary to protect the public ealth, t e public safety, or the environment. 

(5) The owner or operator of a motor ven' cle or trailer transporting on 

the highways or public ro s of this state ha rdous waste required to be 

manifested shall be requi ed to purchase a ha ardous waste trip permit. 

The permit shall be iss ed by the Idaho transp ation department upon 

the payment of a fe of twenty dollars ($20. ) for each single trip 

movement or transit of the vehicle or trailer betw en the point of origin 

and destination as et forth in the permit. No permi hall be required for 

transportation of ve hundred (500) pounds or less of h zardous waste by a 

generatortwent (20) miles or less to an accumulation s'te from which the 

hazardouswa e will ultimately be transported for fin 1 disposal. The 

permit may b in the form of a single trip permit issued pur uant to section 

49-125A, I 0 Code, but shall not be in lieu of any oth' r permits or 

registrati required pursuant to title 49, Idaho Code. All mon s collected 

pursuan to this section by the Idaho transportation departme t shall be 

remitt to the state treasurer for deposit in the hazardous waste raining, 

emer ncy and monitoring account created in section 39-4417 Idaho 

Cod . An amount of money equal to the actual and reasonable st of 

iss ing the hazardous waste trip permit and collecting the m eys 

•	 

Q rsuant thereto as determined by the Idaho transportation departrn nt 
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307 HAZARDOUS WASTE MANAGEMENT 39-4411 

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

count to the Idaho transportation department. 

) No commercial hazardous waste disposal facility or site permitt 

und section 39-4409, Idaho Code, shall receive hazardous waste fro a 

motor vehicle or trailer unless the waste is accompanied by a oper 

manife and the transporter has obtained a special trip permit f· m the 

Idaho tr sportation department as provided in subsection . If an 

improperly ocumented shipment of hazardous waste arrives . a permitted commerc 1 hazardous waste facility or site, the owner 0 operator of 

the facility 0 site shall immediately notify the Idaho ransportation 

department an the Idaho department of health an welfare. [I.C., 

§ 39-4410, as add by 1983, ch. 154, § 1, p. 416; am. 19 4, ch. 205, § 2, p. 

502.] 

Compiler's notes. Sectio Sec. to sec. r . This section is referred to 

1984, ch. 205 are compiled as in §§ 39-4417B 39-4426. 

39-4417B, respectively. 

Cross ref. Motor Carrier Act, § 61-801­

61-818. 

39-4411. Records - Rep ting - Mo 'toring. - (1) Pursuant to the 

provisions of section 39-4405, I ho Code, t e board shall adopt, and amend 

as necessary, such rules and regu tions elating to records, reporting, and 

monitoring as may be needed to ac 'ev the purposes of this chapter. These 

rules may include, but shall not be . ited to, prescribing procedures and 

requirements for: 

(a) The establishment, mainten nee, nd format of records and reports; 

(b) The submittal of records a report· . 

(c) The taking of samples a the perfo ming of tests and of analyses; 

(d) The use of approved mo toring metho and techniques; 

(e) The installation, cali ration, use, and aintenance of monitoring
 

equipment; and
 

(f) The provision of rel vant information to the epartment. 

(2) Sixty (60) days er promulgation of the err eria and lists specified 

under section 39-440 ,Idaho Code, and the niles an regulations required 

under section 39-4 5, Idaho Code, and subsection (I of this section, the 

generation, trans rtation, treatment, storage, or disp al of a hazardous 

waste in this st te by any person without reporting su activity to the 

I

. ! department as equired by the regulations issued pursuant subsection (1) I of this sectio shall be unlawful. . I 

(3) Info ation obtained by the department or by agents, c tractors, or' .! 

other rep, esentatives of the department, under the provisi s of this . 

,

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section d under section 39-4412, Idaho Code, shall be availa e to the 

public unless the director certifies such information must kept I·I: confi ential. The director may make such certification upon a show g, to 

the satisfaction of the director, that the information, or parts there f, if I 

de public, would divulge methods, processes, or activities constitut g
 

ade secrets. Nothing in this subsection shall be construed as limiting t
 
308 

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HEALTH AND SAFETY 

.sclosure of information by the department to any officer, employee, 

au orized representative of the state or the United States, as necessa to 

carr out the provisions of this chapter or the provisions of RCR . The 

provisi s of this section shall not limit the department's aut rity to 

release c idential information during an emergency involvin azardous 

waste, if t director determines that release of the i ormation is 

necessary to s eguard the public interest. 

(4) Each 'gene tor shall, at the discretion of the direc r, no later than 

thirty (30) days a r the end of each calendar quart submit a written 

report to the departm t including the following info ation: 

(a) The types and qua tities of hazardous waste enerated; 

(b) The types and quan 'ties of such wastes ipped for treatment and 

disposal by landfilling or 0 er means of disp sal; 

(c) The types and quantities f such was s remaining in storage at the 

end ofthe reporting period; 

(d) Whether such wastes are des in
 

state or whether such wastes ar
 

outside this state.
 

(5) The operator of each haza ous was disposal facility or site in the 

state shall, no later than thi y (30) days a er the end of each calendar 

quarter, submit a written r ort to the depart ent providing information 

on the types and quanti 'es of wastes received ich were generated in 

Idaho, andinformatio on the types and quantiti s of wastes received 

which were generate m other states. 

(6) Prior to Dec ber 31 of each year the departme 

report to the vernor and the legislature detailing e types and 

quantities of azardous wastes generated in this state, t types and 

quantities 0 such wastes shipped for treatment and disposal by ndfilling 

or other eans of disposal, the types and quantities of sucll wastes 

remain' g in storage at the end of the most recent reporting period a the 

types nd quantities of hazardous waste generated outside this state d 

shi ed into this state for storage or disposal. [I.C., § 39-4411, as added 0 

83, ch. 154, § 1, p. 416; am. 1984, ch. 258, § 1, p. 618.] 

Sec. to sec. ref. This section is referred to
 

in § 39-4429.
 

39-4412. Inspections - Right of entry. - (1) All inspections and 

searches conducted under the authority of this chapter shall be performed 

in conformity with the prohibitions against unreasonable searches and 

seizures contained in the fourth amendment to the constitution of the 

United States and article I, section 17, of the constitution of the state of 

Idaho. The state shall not, under the authority granted by this chapter, 

conduct warrantless administrative searches of private property in the 

absence of either consent from the property owner or occupier or exigent 

circumstances such as a public health or environmental emergency. . . 

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309 HAZARDOUS WASTE MANAGEMENT 39-4413 

(2) For the purposes of developing or enforcing any provision of this 

chapter or any rule or regulation authorized by this chapter, any duly 

authorized state employee or representative may, upon presentation of 

appropriate credentials, at any reasonable time: 

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

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

inspect and to secure samples of such wastes, their containers, and their 

labels; 

(b) Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other 

means of conveyance where hazardous wastes are or have been contained 

to inspect and to secure samples of such wastes, their containers, and 

their labels; . 

(c) Enter any private or public property, or means of conveyance, where 

records, reports, information or test results relating to the generation, 

transportation, treatment, storage, or disposal of hazardous wastes exist 

to inspect and copy such documents. 

(3) Upon request by an authorized agent of a property owner or facility 

operator, the department shall provide the property owner or facility 

operator with a receipt for samples taken and a copy of sample analysis. 

Duplicate samples shall similarly be provided upon request if the requesting party agrees to have the samples analyzed and to share the results of 

the analysis with the department. 

• 

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

facility owner or operator. The right of entry of a duly authorized state or 

health district employee shall not be subject to any confidentiality 

requirements other than those specified in section 39-4411(3), Idaho Code. 

The right of entry of a private	 contractor working in a representative 

capacity for the department may, however, be made subject to additional 

confidentiality requirements so long as those requirements do not interfere 

unreasonably with the development of information by the department or 

the transmission of information from the contractor to the department or 

the United States environmental protection agency. 

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

administrative search warrant upon a request from the director describing 

reasonable cause for issuance of the warrant or the existence of a 

reasonable program of inspection. [I.C., § 39-4412, as added by 1983, ch. 

154, § 1, p. 416.] 

3. Enforcement procedures. 

- Whenever the director 

mines that a erson is in violation of any provision of this c er or any 

permit, standard, r tion, condition, requirement,...-c mpliance agreement or order issued or pro ted pursua is chapter, the dirctor·· 

may commence one or more of the fo~~a:lf: i: 

.. (1) ADMINISTRATIVE AC S. 

(a) Departmental fated Compliance Proceedm 

1.	 Notice e director may commence a departmenta rcement 

y giving a person believed to be in violation of the 

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39-4413	 HEALTH AND SAFETY 310 

itten notice of violation. The notice shall state with reasona e 

s cificity the nature of the problem and likely actions which the 

rec ient should take to remedy the alleged violation. The notic shall 

also tate that a civil penalty could be imposed against the reci ient if 

the vi ation is not remedied within thirty (30) days. The no ce shall 

inform e person to whom it is directed of an opportunit to confer 

with the irector concerning the alleged violation. The otice may 

require a itten response within fifteen (15) days. 

'2. Scheduli Compliance Conference. If a recipient f a notice of 

violation con cts the department within fifteen (15) ays of the time 

"the recipient r ceived the notice, the recipient sha be entitled to a 

compliance confe ence. The conference shall be hel within twenty (20) 

days of the date tH notice was delivered to the re pient, unless a later 

date is agreed to. T e conference shall be held ring normal working 

hours at the local fi d office of the departme t's division of environment located closest to the recipient's place 0 business or at any other 

date, time and location utually agreeab to the recipient and the 

department, 

3. Compliance Conference. he complia e conference shall provide an 

opportunity for a recipient of a not' e of violation to explain the 

circumstances of the allege viola' on and, where appropriate, to 

present a proposal for future 0 liance. If the recipient and the 

director agree on a plan to brin he recipient into compliance, they 

may enter into a voluntary co .ance agreement formalizing their 

understanding. The complianc agr ement may include provisions for 

the payment of state costs a ociate with the alleged violation and 

monetary assessments in li of civil p nalties. All funds secured by a 

compliance agreement sh be paid in the hazardous waste emergency account created by ection 39-4417, daho Code. 

4. Effect of Compliance l\greement. A com liance agreement shall be 

effective immediately pon its being signed. f a party does not comply 

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

obtain in any app priate district court speci c performance of the 

agreement and s h other relief authorized by s ction 39-4414, Idaho 

Code, as the c rt considers to be just and re sonable under the 

circumstances. 

(b) Permit Sus nsion or Revocation Proceedings. 

1. Grounds The director may revoke or temporari 

permit of ny hazardous waste facility or site if the p mitted party 

'fails	 to eet the requirements of a compliance agreem nt or if the 

permit d party commits a violation of the law or a permit ich: 

(i) reates or has created a substantial threat to the publi ealth or 

to	 e environment; or
 

. ) Is repetitious of prior violations of the same or
 

rovisions of the law; or
 

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

of a notice of violation. 

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311 HAZARDOUS WASTE MANAGEMENT 39-4413 

Pi violation that is shown to have occurred as the result of an' 

un reseeable act of God despite a permitted party's reasonable effovt's 

to c ply with all applicable legal requirements shall not be groub.ds 

for a s spension or revocation. . L -! > 2. Noti e of Hearing. The director may commence a permit suspension .. or revoc ion action by giving a permitted party a written,otice of

1 intent to uspend or revoke. The notice shall inform the/permitted 

J party of fac or conduct which warrant suspension or revocation of the 

t	 permit. The otice, hearing, and record requirements or contested 

f cases containe in the Idaho administrative procedure ct, chapter 52, 1 title 67, Idaho de, and subsection (Die) of this secti shall apply to 

(i!-- -",­ s .-	 proceedings initia ed under this subsection. Revoca on or suspension 

of a permit shall come final fifteen (15) days er delivery of the 

+: notice of intent to evoke or suspend unless e permitted party 

.- requests a hearing. 

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3. Administrative Hear g Provisions. 

w (i) Upon a timely requ t by a permit hoI r for a hearing to review 

.j; -."I	 the director's action u er subsection 1)(b) of this section, the 

director shall promptly c duct a hea ng open to the public. The 

contested case provisions 0 the Idah administrative procedure act 

shall apply to all hearings co ucte nder this subsection. 

• 

(ii) The director shall have th au ority to request from the district 

court in and for Ada county or yother appropriate district court 

the issuance of an order in the ture of a subpoena compelling the 

attendance and testimony of tne es and the production before the 

director of papers, books, awing documents, test results, and 

other evidence relevant 0 a pe it suspension or revocation 

investigation or adjudica .on. 

(iii) After the hearing the director sh I issue a written opinion 

setting forth findings of fact, conclusion of law and an order. An 

aggrieved person su ect to the director's 0 ermay seek its review 

as a final order .n a district court as ovided by the Idaho 

administrative p cedure act. District court r view of the director's 

decision shall b limited to the record develope before the director. 

(2) CIVIL ENFO EMENT ACTION. The director ay commence and 

prosecute in distri court a civil enforcement action a inst any person 

who is alleged t have violated this chapter or any p it, standard, 

regulation, con tion, requirement, compliance agreement, r order which 

has become e ective pursuant to this chapter. Such action may be for 

appropriate elief or remedies specified in this chapter or any other 

applicable w. The director shall not be required to initiate or pr secute an 

administr tive action before commencing and prosecuting a civ action. 

(3) L ITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL 

COUR PROCEEDINGS BROUGHT UNDER THE PROVISIO OF 

THI CHAPTER. No civil or administrative proceeding may be broug t to 

rec er for a violation of this chapter or any permit, standard, regulatI n, 

co dition, requirement or order issued or promulgated pursuant to tIl' 

apter more than two (2) years after the director had knowledge or ough 

• ,.. 
312 

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HEALTH AND SAFETY 

easonably to have had knowledge of the violation. 

a ed by 1983, ch. 154, § 1, p. 416.] 

Se to sec. ref. This section is referred to 

in §§ 3 ·4409, 39-4429. 

39-441. Remedies. - The remedies specified In 

cumulativ and nonexclusive. 

(1) MaN TARY PENALTIES. 

(a) Any pe on who makes a false statement or represe tation in any 

application, bel, manifest, record, report, permit or ther document 

filed, maintai ed, or used for the purpose of co lying with the 

provisions of thi chapter shall be liable for a civil p alty not to exceed 

ten thousand doll s ($10,000) for each separate vio tion or for each day 

of a continuing viol ion. 

(b) Any person who violates this chapter or any permit, standard, 

regulation, condition, requirement, complia e agreement, or order 

issued or promulgated p rsuant to this chapt r shall be liable for a civil 

penalty not to exceed ten thousand dollars ($10,000) for each separate 

violation or for each day of continuing vio ation. 

(c) The imposition or compu tion of mo etary penalties may take into 

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

with the law. 

(2) ASSESSMENT OF COSTS. A y erson who violates this chapter or 

any permit, standard, regulation,ondition, requirement, compliance 

agreement, or order issued or prom ga ed pursuant to this chapter may be 

assessed for: 

(a) The state's costs for an nonroufi e investigations, inspections, 

monitoring, or surveys whic ead to evide ce of the violation; 

(b) The state's costs, inc ding the rea nable value of attorneys' 

services, for preparing an itigating the case, 

(c) The state's costs for itigating, removing, orrecting or terminating 

adverse effects upon oil, air, or water qua 'ty resulting from the 

violation; 

(d) The state's cost for impounding, storing, and isposing of contaminated property; 

(e) Compensatio for damages to publicly held resou es including but 

not limited to, and, water, recreational uses, wildlife, sh and aquatic 

life to restore e resource to its highest previous use; 

CD Compen tion for damages to privately held resources 1 eluding, but 

not limite to, livestock, land, water, or other personal p perty, and 

compens ion for court costs allowed by statute, reasonable ttorney's 

fees for rial preparation and trial of the case, and all other re

for ial

sonable 

costs trial preparation and trial of the case; 

(g) ompensation for damages to personal health and compensati 

co costs allowed by statute, reasonable attorney's fees 

p eparation and trial of the case, and all other reasonable costs of t 

reparation and trial of the case; 
•	 313 HAZARDOUS WASTE MANAGEMENT 

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

s iousness of the violation and good faith efforts to comply with the aw. 

(3) ESTRAINING ORDERS, INJUNCTIONS AND OTHER R IEF. 

I (a) y person who violates any provision of this chapter or an permit, 

standa ,regulation, condition, requirement, compliance agr ment, or 

order iss ed or promulgated pursuant to this chapter shall be ubject to a 

permanen or	 temporary injunction, restraining order, 0 other relief I deemed app priate. Upon a showing to the court tha a violation is 

causing an im inent hazard to the public health, the p lie safety, or to 

the environmen the department need not allege or p ve at any stage of 

the proceeding th t long term irreparable damage ill occur should the 

injunction or order ot be issued or that the remed at law is inadequate. 

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

waste facility or site w ich is established '01' 0 rated in violation of this 

chapter or any standard, egulation, conditio ,requirement, compliance 

agreement, or order issue r promulgated rsuant to this chapter. 

(4) PAYMENT TO HAZA OUS WAS EMERGENCY ACCOUNT. 

Moneys recovered by the depar ent pur ant to subsections (1), (2), and 

(3) of this section and any m eys aid to settle any enforcement 

proceeding instituted under section 9 413, Idaho Code, shall be paid into 

the hazardous waste emergency acco t created by section 39-4417, Idaho I	 Code. [I.C., § 39-4414, as added by 98 ch. 154, § 1, p. 416; am. 1984, ch. 

157, § 1, p. 383.]

• I 

I tuting misd eanors. 

- (1) Any person 

who knowingly makes a false statemen or representation in any 

application, label, manife ,record, report, perm' ,or other document filed, 

maintained or used for t e purpose of complying .th the provisions of this I chapter shall be guilty. of a misdemeanor and subje t to a fine of not more I I than ten thousand dellars ($10,000) or to imprisonm t not to exceed one 

I I (1) year, or to bo ,for each separate violation or or each day of a 

continuing violati n. I .j (2) Any pel'S who knowingly violates any provision 0 this chapter or 

any permit, andard, regulation, condition, requiremen 

agreement, order issued or promulgated pursuant to this apter shall 

be guilty a misdemeanor and subject to a fine of not mol' than ten ill 

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thousan ollars ($10,000) or to imprisonment not to exceed one ( year, or 

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

I I II

(3) n action may be commenced and prosecuted by the att rney 

gen a1. The director shall not be required to initiate or prosecut an 

a inistrative or civil action before the attorney general may commen e 

d prosecute a criminal action. [LC., § 39-4415, as added by 1983, ch. 154, Ij § 1, p. 416; am. 1984, ch. 54, § 1, p. 94.] 

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t ; 39-4416. Citizen suits. - (1) Except as provided in subsection (2) of ! j. this section, any person who has been injured or damaged by an alleged 

!"f violation of any permit, standard, regulation, condition, requirement, or 

order which has become effective pursuant to this chapter, may commence 
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39-4417 HEALTH AND SAFETY 314 

a civil action on that person's own behalf against any person alleged to 

have committed the violation. A person commencing an action under this 

section shall be required to file a bond or equivalent security in 'an amount 

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

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

the department has commenced and is diligently prosecuting an administrative, civil, or criminal action to require compliance with the law. 

Further, no action may be commenced under subsection (1) of this section 

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

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

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

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

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

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

matter of right. " , , , , 

(4) ,When issuing any final order in. any action brought pursuant to this . 

section, the' 'court may' award costs of litigation, including reasonable' 

attorney and expert witness fees, to any prevailing party, whenever the 

court determines such an award is appropriate, except that the state of 

Idaho shall not be required to pay such costs in any citizen suit where the 

state has become a party. ' 

(5) Nothing in this section shall restrict any right which a person, or 

class of persons, may have under any other statute or the common law. 

[I.C., § 39-4416, as added by 1983, ch. 154,'§ 1, p..416.] 

17. Hazardous waste emergency account. (1) There is" 

hereby ated an account in the agency asset fund in the state treasury to 

be designa the hazardous ,:aste emergency accou.nt.. . /" " , 

:(2) The aced t shall .consist of moneys appropriated to the-account by 

the legislature, m eys allotted to the account as a result pr-<1epartmental 

compliance proceedi , moneys allotted to the account-in a court ordered 

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

settlement, and moneys con ibuted to the account from other sources. 

(3) Moneys in the account be used by-the director in the case of a 

hazardous waste emergency to thl;!/I;,ecessary costs of preventing, 

neutralizing, or mitigating any thre ~o the public health or safety, or to 

the environment caused by that e e~en . 

(4) The board may promulg regulatio for the withdrawal and use of 

funds from the account as s cified in subsectio 3) of this section. 

(5) All moneys place In the account are here perpetually appropriated to the departm t for the purposes described in bsection (3) of this 

section. All exp itures from the account shall be, pal out in warrants 

drawn by the te auditor upon presentation of the proper v chers. 

(6) Pen 'ng use, surplus moneys in the account shall be inv ted by the 

state easurer in the same manner as provided under section 7-1210, 

Id 0 Code. Interest earned on the investments shall be returned the 

ccount. [I.C., § 39-4417, as added by 1983, ch. 154, § 1, p. 416.] 
•
 

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HAZARDOUS WASTE MANAGEl\IENT 39-4419

Sec. to sec. ref. This section is referred to 

§§ 39·4413 and 39-4414. 

3 -4417B. Hazardous waste training, emergency and monitorin 

315 

acco t. - (1) There is hereby created an account in the dedicated fun In 

the sta treasury to be designated the hazardous waste training, e ergencyan monitoring account. 

(2) The count shall consist of: 

(a) Mone appropriated to the account;
 

. (b) Moneys provided in sections 39-4410 and 39-4432,
 

. (c) Donations gifts and grants from any source; and
 

(d) Any other pneys which may hereafter be provided bll aw. 

(3) Moneys in t account may be appropriated for y or all of the 

following purposes: " 

(a) Acquisition of p perty andequipment byfhe partrnentof health . 

~nd welfare "~o" analyz monitor, contain, collect 0 dispose of hazardous 

wastes; 

(b) Employment of or co tracting wid). necess ry personnel to analyze, 

monitor, contain, collect or ispose of hazardo s wastes; or 

(c) Employment of individu s or contracti g with individuals or corporations to respond throughou the state to health and environmental 

problems which may be caused hazar ous waste emergencies or spills, 

improperly packaged or handled az dous waste or the alleviation of 

damages to the people and environ eni of the state" ofIdaho caused by' " 

such emergencies or spills. 

(d) Taking removal or remedia acti relating to hazardous wastes 

which the department deems n cessary prevent, minimize or mitigate 

damage to the public healt and welfa environment. [I.C., 

§ 39-4417B, as added by 19 ,ch. 205, § 3, 

Compiler's notes. Sections 2 a d 4 of S.L. Sec. to se ref. This section is referred to 

1984, ch. 205 are compiled as §§ 9-4410 and in §§ 39-4410, 9-4432. 

39-4426, respectively. 

39-4418. Local g ernment notice. - A permit r a new hazardous 

waste land disposal acility or site shall not be issued u il the department 

has given ninety 0) days' notice to the board of county ommissioners of 

the county in w ich the proposed facility or site is to located. [I.C., 

§ 39-4418, as a ded by 1983, ch. 154, § 1, p. 416.] . 

nterstate cooperation. - The director shall ha the power 

and the d y to encourage cooperative activities between the d artment 

and other: states for the improved management of hazardous waste and so 

far as J practical, to provide for uniform state regulations d for 

inters teagreements relating to hazardous waste management. The tate 

may enter into such agreements with other states to accomplish the 

pu oses as set out in this chapter. [I.C., § 39·4419, as added by 1983, tho 

1 f1, § 1, p. 416.] 

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I 39-4420 HEALTH AND SAFETY 316 

I 39- Employment security. - (1) No employee of a hazardous 

waste genera transporter or treatment, storage, or disposal faci or 

I site shall be dismis suspended, or otherwise discrimi e against 

because the employment tes 1 rovides inform . or otherwise assists 

1 in the enforcement or administration visions of this chapter. I

I (2) Any employer who knowin 0 ates rovisions of subsection (1) 

of this section shall be' e for damages, costs a attorneys' fees, in I addition to an r liabilty for relief authorized by this c er, by any 

other s e, or by the common law. [I.C, § 39-4420, as added by ch. 

,§ 1, p. 416.] 

39-4421. Good samaritan protection. - (1) Notwithstanding any 

provision of law to the contrary, no person who provides assistance or 

advice in mitigating or attempting to mitigate the effects of an actual or 

threatened leakage, seepage, or other release of hazardous waste, or in 

preventing, cleaning up, or disposing of or in attempting to prevent, clean 

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

to civil liabilities or penalties of any type. 

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

not apply to any person: 

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

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

liable therefor; or 

(b) Who receives compensation other than reimbursement for out-ofpocket expenses for services in rendering such assistance or advice. 

(3) Nothing in section (1) above shall be construed to limit or otherwise 

affect the liability of any person for damages resulting from such person's 

gross negligence, or from such person's reckless, wanton, or intentional 

misconduct. [I.C., § 39-4421, as added by 1983, ch. 154, § 1, p. 416.] 

-4422. Severability. - The provisions of this act are hereby decla 

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

provision to person or circumstance is declared invalid fo y reason, 

such declaration II not affect the validity of remaini portions of this 

act. [I.C., § 39-4422, as ded by 1983, ch. 154, § 1, 6.] 

Compiler's notes. For words "this ac '
 

Compiler's notes, § 39·4401.
 

39-4426. Appointment of alth inspec 

health and welfare shal ssign a sufficient n ber of employees and .J 

equipment to inspec azardous waste facilities or S1 permitted under 

section 39-4409 aho Code, and located in Idaho w disposal of 

hazardous e occurs for the purpose of assuring the prote . n of the 

health safety of the public by monitoring the receipt and han of 

ha ous wastes which have been transported by common carrier. 

,.. 
•
 

•
 

317 HAZARDOUS WASTE MANAGEMENT 39-4428 

2) The employees of the department of health and welfare designated' 

sub ection (1) of this section shall be agents of the Idaho transportat" n 

depa ment and the public utilities commission for the purpose of colle ing 

regula ry and registration fees pursuant to sections 61-811 and -812, 

Idaho C e, and for collecting fees and permits pursuant to chapte 1, title 

49, Idaho Code, which fees have not otherwise been lawfull paid by 

transporter to the public utilities commission, the Idaho tra sportation 

department a county assessor in this state and for issui g hazardous 

waste trip per its pursuant to section 39-4410, Idaho Co . All moneys 

collected by the epartment's employees as agents of the I aho transportation department d the public utilities commission s 1 be remitted to 

the state treasurer or deposit in the proper account s provided by law. 

(3) All employees the department designated p rsuant to subsection 

(1) of this section shall lert proper authorities or ace officers regarding 

violations pursuant to t .s chapter, violations p suant to title 61, Idaho 

Code, and violations pursu nt to title 49, Idaho ode, and violations to any 

rules and regulations issue pursuant to any of the aforementioned code 

sections. 

All actions brought for violat ns of the p visions of this chapter or rules 

and regulations promulgated pur uant th eto shall be brought as provided 

for in this chapter. All actions br ugh for violations of the provisions of 

title 61, Idaho Code, or of title 49, I Code, shall be brought as provided 

in those titles. [I.C., § 39-4426, as ded by 1984, ch. 205, § 4, p. 502.] 

Compiler's notes. Section 3 of S.L. 19 4, 

ch. 205 is compiled as § 39-4417B. 

39-4427. Hazardous was e disposal fe - On and after July 1, 1984, 

there is imposed on the 0 er or operator of very commercial hazardous 

waste disposal facility or si e permitted under s tion 39-4409, Idaho Code, 

a fee of twenty dollars (S 0.00) per ton, or fractio thereof, on all materials 

disposed of at the facili or site. [I.C., § 39-4427, a added by 1984, ch. 205, 

§ 5,p.502.l 

Sec. to sec. ref. Thi 

in § 39-4429. 

39-4428. C llection of fees - Returns. - The fees [mposed under 

section 39-4 27, Idaho Code, shall be due and payabl in monthly 

installmen by the owner, agent, employee, or operator of su hazardous 

waste faci lty or site and remittance shall be made to the Idaho partment 

of healt and welfare on or before the fifteenth day of the m th next 

succee mg the end of the monthly period in which the fee accr d. The 

owne , operator or designated employee or agent of the hazardous waste 

faci ty or site, on or before the fifteenth day of the month, shall make ut a 

re rn, upon such forms setting forth such information as the depart nt 

ay require, showing the amount of the fee for which the owner or operat r 
•• 

•
 

•
 

39-4429 HEALTH AND SAFETY 318 

o azardous waste facility or site is liable for the preceding mo 

period, an sign and transmit the same to the depart , ogether 

with a remittance for mount in the form reo ,,;,"~r--

(2) The department may re 1 or class of persons from the 

obligation of filing monthly r an require the return to cover 

other reporting peri ,ut in no event shall retu filed for a period 

greater t ree (3) months. [LC., § 39-4428, as added by ch. 205, 

, .502.] 

39-4429. Books and records to be preserved - Entry and inspection by department of health and welfare. - Every person or entity 

subject to the imposition of the fees specified in section 39-4427, Idaho 

Code, shall keep complete and accurate records, including itemized invoices 

and manifests for federally regulated types and quantities of hazardous 

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

All books, documents and papers, computer tapes, discs, and ~thet 'rec~rds'

required to be kept by this-section shall be preserved fora period of at least 

fi'v~ (5) years from the date' of the records or' the date of the entries' . 

appearing in the records, unless the department in writing, authorized 

their destruction or disposal at an earlier date. For purposes of this act, at 

any time during usual business hours, the. department or duly authorized 

agents or employees, may enter any place of business of the owner or 

operator of a hazardous waste facility or site where hazardous wastes are 

disposed and inspect the premises, the records required to be kept under 

this chapter, and the hazardous wastes. or other chemicals' contained 

therein, to determine whether or not all the provisions of sections 39-4427 

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

information obtained by the department under the provisions of this section 

shall be treated in the same manner as such information obtained under 

section 39-4411, Idaho Code. If the department, or any of its authorized 

agents or employees is unreasonably denied free access or is unreasonably 

hindered or interfered with in making the examination of a hazardous 

waste facility or site, that hindrance or interference shall constitute 

grounds for suspension or revocation of the facility or site's permit by the 

director of the department of health and welfare under subsection (b) of 

section 39-4413, Idaho Code. [I.C., § 39-4429, as added by 1984, ch. 205, 

§ 7, p. 502.] , l 

".\ 

\ 

­

" 
It.


,',' 

319 HAZARDOUS WASTE MANAGEMENT 39-4432 

3 -4431. Collection and enforcement. - (1) The collection an 

enfor ment procedures available to the Idaho state tax commissi n 

provide by the Idaho income tax act, sections 63-3030A, 63-3038, 63- 39, 

63-3040, 3-3042 through 63-3045A, 63-3047 through 63-3065A, 6 -3068, 

63-3070, 6 3071, 63-3072, 63-3073 and 63-3078, Idaho Code, as ey now 

exist or as th may subsequently be amended, shall apply and b available 

to the depart ent of health and welfare for the enforce ent of the ;
 

tj.·
 hazardous waste isposal fee and for the assessment and c ection of any 

amounts due the under. Said sections shall, for the aforementioned 

purposes, be conside ed part of this act and wherever lens or any other 

proceedings are defin as income tax liens or pro edings, they shall, 

when applied in enforce ent or collection under t s act, be described as 

hazardous waste disposal e liens and proceeding . 

(2) The department of ealth and welfar may be made a party 

defendant in any action at la or in equity b~ any person aggrieved by the 

unlawful seizure or sale of his roperty, in any suit for refund or to 

recover an overpayment, but only he stat ofIdaho shall be responsible for 

.any final judgment secured agains th department of health and welfare 

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

disposal fee refund account. [I.C., § 31, as added by 1984, ch. 205, § 9, 

p.502.] 

39-4432. Distribution of azardous w te disposal fee revenues. 

- The revenues received om the fees impos d by this chapter and any 

penalties, interest, or de ciency additions, shal e paid over to the state 

treasurer by the depart ent to be distributed as fo ws: 

(1) An amount of oney to maintain the hazard s waste disposal fee 

refund account, w ch is hereby created, and 'fro which all refunds 

authorized to be id by this act shall be paid, at a mon ly balance of ten 

thousand dolla ($10,000) or at such greater sum as in t e opinion of the 

department ay be needed to meet reasonable requireme s imposed on 

the hazardo s waste disposal fee refund account. 

(2) The alance remaining with the state treasurer after de ucting the 

amount in (1) above, shall be remitted periodically but no less quently 

than uarterly, to the hazardous waste training, emergency and nitoring ccount created in section 39-4417B, Idaho Code. [I.C., § 39-44 

a ed by 1984, ch. 205, § 10, p. 502.] 

Compiler's notes. Section 11 of S.L. 1984, Sec. to sec. ref. This section is referred 

ch. 205 is compiled as § 67-2929. in § 39-4417B. 

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

'.
 
•	 1991 • 

CUMULATIVE· 

• POCKET SUPPLEMENT 

IDAHO CODE 

Compiled Under the Supervision of the 

Idaho Code Commission 

PHILLIP M. BARBER 

B. NEWAL SQUYRES, JR.	 M. ALLYN DINGEL, JR. 

COMMISSIONERS 

MAX M. SHEII,.S, JR. 

EXECUTIVE SECRETARY 

•	 

VOLUME 7A 

REPUBLISHED SEPTEMBER, 1991 

For your convenience in reporting any errors in these supplements or suggested improvements or additions you willfind 

postpaid cards in the back of the 1991 Replacement Index 

Volumes. 

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

All Rights Reserved
 

By
 

THE MICHIE COMPANY
 

Law Publishers 

CHARLOTIESVILLE, VIRGINIA 
•
 

•
 

•
 

•
 

PUBLISHER'S NOTE
 

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

bound volume down to and including the 1991 regular session are compiled 

in this supplement and will be found under their appropriate section numbers. 

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

following sources: 

Pacific Reporter 2nd Series through Volume 804, p. 688.
 

Federal Supplement through Volume 754, p: 891.
 

Federal Reporter 2nd Series through Volume 924, p. 1067.
 

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

. through Volume 112, p. 865. 

Bankruptcy Reporter through Volume 123, p. 466. 

Opinions of Attorney General 1983-1 through 1990-8. 

Section numbers printed in black face type either refer to sections of the 

. original volume or to new acts not included therein.. 

Title and chapter analyses, in these supplements, carry only laws that 

have been amended or new laws. Old sections that have nothing but annotations are not included in the analyses. 

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

throughout the Idaho Code. 

LR.C.P. Idaho Rules of Civil Pro·cedure 

LR.E. Idaho Rules of Evidence 

LC.R. .Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

LLR. .Idaho Infraction Rules 

LJ.R. Idaho Juvenile Rules 

I.C.A.R. Idaho Court Administrative Rules 

LA.R. Idaho Appellate Rules 

- ALWAYS CONSULT THE LATEST SUPPLEMENT IN CONNECTION
 

WITH THE PERMANENT VOLUME
 
ADJOURNMENT DATES OF SESSIONS OF
 

• 

LEGISLATURE 

Year Adjournment Date 

1986 .March 28, 1986 

1987 April 1, 1987 

1988 March 31, 1988 

1989 March 29, 1989 

1990 ; March 30,1990 

1991 March 30, 1991 

•
 

•
 

111 
• '.i:­

. "":'" ". 

...•. 

or. 

!--.: 

.. 

.iL. 

"="' .... ...

~."

,~

e: 

~~'

r': 

':i: .' '';~t

. ,.. 

~i' ,'. ... .

• 

157 HAZARDOUS WASTE MANAGE&T 39-4403 

CHAPTER 44 

HAZARDOUS WASTE MANAGEMENT 

SECTION. SECTION. 

39-4403. Definitions. 39-4412. Inspections - Right of entry [Ef39-4404. 

39-4405. 

39-4408. 

39-4409. 

Consistency with federal law. 

Rules and regulations in general. 

Unauthorized treatment, storage, 

release, use or disposal of hazardous waste prohibited. 

Permit requirements for hazardfective July I, 1993]. 

39-4413. Enforcement procedures. 

39-4417A. [Reserved.] 

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

39-4410. 

39-4411. 

39-4411. 

ous waste treatment, storage, 

or disposal facilities. 

Transportation of hazardous 

waste.' 

Records - Reporting - Monitoring [Effective until July I, 

1993]. 

Records Reporting - Monitor39-4423. 

39-4424. 

39-4425. 

39-4426. 

39-4432. 

Disposal of restricted hazardous 

wastes prohibited. . 

Disposal of manifested waste. 

[Reserved.] 

Appointment of health inspectors. 

Distribution of hazardous waste 

disposal fee revenues. 

" ing [Effective .July 1, 1993], 

. '"'39..4461. SliOl t ·title. 

-Sec;-to·sec:--rer.-This chapter is Fef~ Cited-iru-State'V. Hanna Mimng Co., 699 

in §§ 39-"1114 and 49 2286. F. Supp. 827 (D. Id.aho 1987) 

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

(1) "Board" means the Idaho board of health and welfare. 

(2)ttCommetCial hazardous waste facilityor site" means any hazardous 

waste facility whose primary business isthe treatment, storage or disposal, 

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

generators other than the owner and operator of the facility. 

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

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

welfare or the director's authorized agent. 

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

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

that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including 

ground waters. 

(6) "Generator" means any person, who by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the 

creation of a hazardous waste. 

(7) "Hazardous waste" means a waste or combination of wastes of a solid, 

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

concentration or characteristics (physical, chemical or biological) may: 

(a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or 

(b) Pose a substantial threat to human health or to the environment if 

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

but are not limited to, materials which are toxic, corrosive, ignitible, or 

reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in do­
•
 

•
 

•
 

39-4403_ HEALTH AND SA.Y 

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

or industrial discharges which are point sources subject to national pollu-"~

tion discharge elimination system permits under the Federal Water Pol-,~

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

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

Act of 1954, as amended, 42 U.S.C., Section 2011 et seq."~~~1

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

collection, source separation, storage, treatment, transportation, process-;?' 

ing, and disposal of hazardous wastes. c':,~fi;~~

(9) "Hazardous waste facility or site" means any property, structure, or':';? 

ancillary equipment intended or used for the transportation, treatment, :.~~~

storage or disposal of hazardous wastes. "~.1-, (10) "Injection" means -the subsurface emplacement of free liquids.~B;;;:

(11) "Manifest" means a form used for identifying the quantity, composi-iv 

tion, origin, routing, waste identification coders), and destination ofhazard-'':' 

ous waste during any transportation from the point of generation to the 

point of treatment, storage or disposal. _ 

(12) "Manifested waste" means waste which at the point of origin or 

generation is required to be manifested for transportation in a manner ..: 

similar to that of the federal uniform hazardous waste manifest or by other -. 

manifest requirements designed to assure proper treatment, storage anddisposal of such waste: _ . 

(13) "Person" means any individual,-association, partnership, firm, joint 

stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency, or instrumentality, or any other legal entity which is recognized by law as the subject of.. 

rights -and duties. ­

(14) uRCRA" means the Resource Conservation and Recovery Act,.of 

1976 as amended in 1978, 1980 and 1984. 

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

(a) Any hazardous waste which contains any of the following substances, 

in the following concentrations, as determined without considering any 

dilution which may occur, unless the dilution is a normal part' of the .: 

manufacturing process: ,_ 

(i) Liquid hazardous wastes containing free cyanides or sulfides at .. 

concentrations greater than, or equal to, one thousand (1,000) parts per:,: . million. .' ~.~ ,'. . .. ;­

(ii) Liquid hazardous wastes containing any of the following metals or c., 

elements, or compounds of these metals or elements, at concentrations. ':~.

: greater than, or equal..to, any of the following: i. j , 

Arsenic e .••••••••••••••••••••• •• ' :. 500 parts per million -­

.. Cadmium 100 parts per million 

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

.Lead '" 500 parts per million 

t - Mercury 20 parts per million 

Nickel 134 parts per million 

Selenium ~................................. 100 parts per million 

Thallium 130 parts per million 
"I'~.. 

. . 159 e HAZARDOUS WASTE MANAGEME. 39-4404 OJ; 

(iii) Liquid hazardous wastes having a pH less than or equal to two (2). 

(iv) Liquid hazardous wastes containing polychlorinated biphenyls at 

concentrations greater than, or equal to fifty (50) parts per million. • (v) Hazardous wastes containing halogenated organic compounds in

" 

total concentration greater than, or equal to, one thousand (1,000) 

milligrams per kilogram. 

(b) A hazardous waste may be classified as a restricted hazardous waste 

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

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

(16) "Storage" means the containment of hazardous wastes, on a temporary basis or for a period of years, in such a manner as not to constitute 

"l disposal of such hazardous wastes. " 

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

from a hazardous waste facility or site. 

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

, to or from a hazardous waste facility or site. 

:f (19) "Treatment" means any method, technique, or process, including 

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

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

'.,,',,: biological character or composition of any hazardous waste prior to storage . or final disposal so as to neutralize such waste or so as to render such waste 

nonhazardous or less hazardous; safer to transport, store, or dispose of; or 

.. amenable for recovery, amenable for storage or reduced in volume. Such • term includes any activity or processing designed to change the physical

! 

form or chemical composition of hazardous waste so as to render it nonhazardous. ' , 

(20) "Waste" means any solid, semisolid, liquid or contained gaseous 

material for which no reasonable use or reuse is intended or which is in­ ;1 t 

tended to be discarded. [I.e., § 39-4403, as added by 1983, ch. 154, § 1, p. 

416; am. 1984,ch.205,§ 1,p. 502; am. 1986,ch. 148,§ 1,p. 415; am. 1986, 

ch. 324, § 1, p. 794; am 1989, ch. 253, § 1, p. 626.] 

Compiler's notes. Section 2 of S.L:1986, , Section 2 of S.L. 1989,ch. 253 is compiled 

ch. 148 is compiled as § 39-4405.' .. as § 39-4424. . 

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

as § 39-4423. in § 39-4423. 

39·4404. .Consistency with federal law. - The legislature intends 

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

will enable the state to assume primacy overhazardous waste control from 

the federal government. . .... 

• 

The legislature finds that the RCRA; as amended, 42 U:S.C., Section 

6901 et seq., and regulations adopted pursuant thereto; establish complex 

and detailed provisions for regulation' of those who generate, transport, 

treat, store, and dispose of hazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of 

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

However, by the provisions of this chapter, the legislature desires to avoid 
•
 

•
 

:-~~ '.i~:'

;'"~;:' "-''':-~ ,~ . .....f~ _' 

39-4405. HEALTH AND SAA 160~f >~t -	 ~~

the existence of duplicative, overlapping or conflicting state and federal:i, 

regulatory systems. . .'-:"-'ff<' 

Therefore, the board is directed to promulgate rules and regulations--rr 

which are in substance consistent with RCRA and the federal regulationS~r

adopted by the administrator of the United States environmental protec~~

tion agency to implement RCRA. Until such time as the board has promur:~

gated rules and regulations concerning mining and mineral wastes and~

materials under study by the administrator, those wastes' and materials';'~

shall not be considered or defined as hazardous wastes under this chapter;;] 

provided, however, that spent potliners from primary aluminum reduction;;~j~

or environmental protection agency hazardous waste number K088, shal(~~ .: -:j~,

i 

be define,d as hazardous waste. Farmers and ranchers who treat, store, ~~j~

dispose of waste pesticides from their operations on lands owned or con'..:~~ . 

trolled by them shall not be required by board rules or regulations to do?r~

anything more than follow the instructions on the pesticide label and triple -:j 

rinse empty containers in accordance with the RCRA regulations of the ...

environmental protection agency. The board may not promulgate any rule. !( 

or regulation that would impose conditions or requirements more stringent :::-t 

orbroader in scope than RCRA and the RCRA regulations of the envirori-:'~b

mental protection agency. The board may, however, promulgate procedural ~~;:

rules and regulations and rules and regulations specifically authorized bY~~

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

regulations are required by RCRA or the regulations of the environmental :.'i 

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

flict with this section, other sections ofthis chapter, RCRA, or the rules and il 

regulations of the environmental protection agency. Any rule or regulation -~a

promulgated by the board shall be valid until it is repealed or modified n~

through the administrative process of section 67-5201, Idaho Code, et seq. .;: 

[I.C., § 39-4404, as added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 182, .­

§ 1, p. 479; am. 1988, ch. 6, § 1, p. 6; am. 1988, ch. 259, § 1, p: 498..l ..-;:~

Compiler's notes. This section was of the third paragraph, inserted "HeRA and ~'
 I' amended by two 1988 acts which appear to be . the"; and in the sixth sentence of the third .~~
 

compatible and have been compiled together. paragraph, inserted "HCRA and."""
 I 

!	 The amendment by ch. 6 deleted the second Section 2 of S.L. 1986, ch. 182, declared an 

and third sentences of the third paragraph as emergency. Approved April 1, 1986. ,,_, 

they appear in the bound volume. The Section 2 of S.L. 1988, ch. 259 is compiled '~li:~

amendment.by ch. 259, in the first sentence as § 39-4409. :~~. .-_,"~~-~

. .' . -' . .. .'. .. - '. - . ", r3?-:z 

39-4405. . Rules and regulations in general. -. Pursuant to the proce- -:J'i~~:

du~es established by the Idaho administrative procedures act, chapter 52, -=k~

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

necessary and feasible for the management of the generation, collection, ,~~t

transportation, treatment, storage, and disposal of hazardous wastes within :~t

• 

the state. The board shall also adopt such rules and regulations as neces- :~

sary to regulate persons who produce, burn, distribute, and market fuel .Econtaining hazardous waste. The rules and regulations promulgated by the -iZ:~

board shall be a part of this code and shall have the force and effect of law. a . 

Such rules and regulations shall include, but not be limited to: 
161	 

•

HAZARDOUS WASTE MANAGEMENT 39-4408 

" 

,­

l':t J.' 

• 

(1) Criteria for the determination of whether any waste or combination 

of wastes is hazardous for the purposes of this chapter; 

(2) Rules and regulations for those who generate, transport, treat, store, ~~.-- '._­ or dispose of hazardous wastes; :-T~~:.. ,'-'.' . (3) Rules and regulations, consistent with those issued by the United ,.
 

I,.'
 States environmental protection agency and the United States department /., ; , of transportation, for containerization, labeling and manifesting of hazardous wastes; .....

(4)' Rules and regulations specifying the terms and conditions under 

which the department shall issue, modify, suspend, revoke, or deny such 

permits as shall be required by this chapter; 

(5) Lists of those wastes or combinations of wastes which are not compatible and which may not be stored or disposed of together; 

(6) Procedures and requirements for the reporting of the generation, 

transportation, treatment, storage or disposal of hazardous wastes; . 

(7) Rules and regulations establishing standards and procedures for the 

training of personnel at generation sites and at hazardous waste facilities 

~'- ': and sites; . i>;: ":. :;~ -; (8) Release detection, prevention and correction regulations applicable to t'-+:':.	 :0 t-,,-	 . all owners and operators of underground storage tanks, as may be neces­ ""J:. 

r- ; sary to protect human health and the environment. [I.C., § 39-4405, as 

• -;::w 

added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 148, § 2, p. 415.] 

Compiler's notes. Sections 1 and 3 of S.L. 

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

39-4408. 

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

of hazardous waste prohibited. - (1) No person shall treat or store 

hazardous waste, nor shall any person discharge, incinerate, release, spill, 

place, or dispose any hazardous waste in such a manner that the waste, or 

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

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

activity involved or exempted the activity from permit requirements. 

(2) Effective six (6) months after the effective date [July 1, 1986] of this 

provision, .nonhazardous liquids shall not be disposed of in a landfill, for 

which a permit is-required under section 39-4409, Idaho Code, or which is 

operating 'pursuant to interim status granted under section 3005(c)of 

HCRA, "unless the owner' or operator of the landfill demonstrates to the 

director	 that:' ' . 

(a)" The only reasonable alte~ative is placement in a landfill or unlined 

,surface impoundment which contains or may contain hazardous waste; 

•	 

and 

(b) Placement in the owner or operator's landfill will not present a risk of 

'contamination of any existing or potential underground source of drinking water. 

(3) Waste or used oil or othermaterial which is contaminated or mixed 

with any hazardous waste, other than wastes identified solely on the basis 

of ignitibility, shall not be used for dust suppression or road treatment. 
1 

~.' .. 

• j~ r • .::>...:::, 

39-4409 HEALTH AND SAFE• 

.. ~.,:~

(4) The board shall have authority to prohibit:,.1i~;5i; , 

•
 

•
 

•
 

(a) Land disposal of any hazardous waste; and "'';f#:~#

(b) Storage of any hazardous waste prohibited from land disposal, unless'­

such storage is solely for the purpose of the accumulation of such quanti-,»$' , ..".c',%

ties of hazardous waste as are necessary to facilitate proper recovery/t~:,:

treatment or disposal. [I.C., § 39-4408, as added by 1983, ch. 154, § 1, p-, ' -,~:.

416; am. 1986, ch. 148, § 3, p. 415.] ", ' ,.,',l0~

~:- ...;~.:.--'" . "-'~""'i'._~~.~'

Compiler's notes. .Section 3005(c) or Section 2 of S.L. 1986, ch. 148 is compiled ~;~:

RCRA referred to in this section is compiled as § 39-4405. , /'::t~ as 42 U.S.C.; § 6925(c). " "~'":t~l t' • l __ .•

-or '-;;:~,:

""7: 

39-4409. Permit requirements for hazardous waste treatment~'~

storage, or disposal facilities! - (1) No person shall construct, operat~;~)if~*

or modify a hazardous waste treatment, storage, or disposal facility or sit{~-i-~ . ../'

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

orsite rather than the builder shall be responsible for obtaining the permit. :;' 

Permits may contain such conditions necessary to protect human health <~:'

and environment. The board may exempt classes or categories of hazardous -~;

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

if the exemption is in the public interest and consistent with RCRA re- ,'~,

quirements. The' fact that a class or category of such facilities is not re~::?::

quired to obtain a federal permit shall be persuasive evidence that an ." 

exemption is in the public interest. ..' 

(2) Interim status granted by RCRA or a permit issued by the United " , 

States environmental protection agency prior to the date that the state :,,~ I 

program is authorized by the administrator of that agency shall be adopted': .~~~'

by the department as a state granted interim status or as astate' granted ","1~ " ',''o!ii

permit until the department issues a new state permit. The board may .' ",,?i/ 

adopt such rules and. ~e~ations ~s neces.sary. to: " .. ;.::i~

(a) Allo,: othe~ ~acIlI.tIes ~o qualify for Inte~Im status; . ,', ~~!

(b) Require existing interim status surface Impoundments, new units, ~,t~

replacement of existing units and lateral expansions'of existing interim ;,.:~

status facilities to comply with all regulations which apply to new facili-::~~ , ."'@

ties' , and '<,}~. - ;'''J',~

(c) 'Provide for the "termination of interim status.' '. '~-i

(3) The board' shall promulgate rules and regulations establishing the .' ~~

terms and conditions for issuing permits to the described facilities ,and .~~~

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

(a) Standards and procedures for the safe operation and maintenance of ,,~

. the facilities and sites: ." . .. .. ,3':;~ , " .:.' 

'(b) Education and training': qualifications' of personnel at the facilities ~~<jj and sites' , . ;U~

(c) Contractual commitment or consent to each facility or 'site from all ,~,~

.holders ofinterests in the real property committed to that facility or site; =~

(d) Monetary assurances in such form and amount as are necessary for 311 . "effective management, maintenance.iand monitoring of the facilities and ',~ sites during and after operation; . . " ";: 
, 

'" 

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163 • HAZARDOUS WASTE MANAGEMENT 39-4409 

#:2­

if'.'· (e) Evidence of financial responsibility for corrective action on-site and r~.

:~- . off-site; :::;;,.~

:~~::.~ (f) Liability insurance in such form and amount as is necessary to com­ ~~~~ !hi. pensate for potential damages caused by the facilities and sites; provided, -~;.:.

that liability insurance shall not be required in the event that liability 

insurance is not required by the federal regulations adopted pursuant to 

the RCRA; 

(g) Emergency equipment and emergency response plans appropriate to 

the facilities and sites; 

(h) Public participation in the permitting process consistent with 42 

U.S.C., section 6974(~).

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

maximum period allowed under RCRA, whichever is greater. However, 

permits may be reviewed at least every five (5) years and modified as 

necessary to take into account changes in this chapter or regulations promulgated pursuant to it and improvements intechnology. Permits issued to 

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

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

chapter and the rules and regulations promulgated under this chapter. 

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

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

". the treatment, storage, or disposal facility seeking the permit, regardless of !:'':~- the time when the waste was placed in such unit. Permits issued from 

November 8, 1985, until the effective date of this provision shall be reissued to conform with this provision. 

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

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

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

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

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

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

the director, application of the requirements would cause unreasonable 

hardship and the granting of a variance would not be harmful to the public 

interest or inconsistent with RCRA requirements.' A .variance shall not 

exceed one (1) year induration and may be renewed or extended only after 

the department provides public notice and an opportunity for public comment. 

(8) (a) The director of the department may issue aresearchrdevelopment and demonstration permitfor any hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated.Any such permit shall include such terms 

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

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

operation of the facility for not longer than one (1) year (unless renewed as provided below); and 
• . , 

-'. ~'5"

39-4410 HEALTH AND SAFE• 

2. Provide for the receipt and treatment by the facility of only those":-l 

types and quantities of hazardous waste which the director deems' nec-2~~'

•
 

•
 

essary for purposes of determining the efficiency and performance ca~:~~

pabilities or'the technology or process and the effects of such technol- ,:~~

ogy or process on human health and the environment; and ,', ..;;~

3. Include such requirements as the director deems necessary to pro- ~~~.

teet human health and the environment (including, but not limited to, "~;~

requirements regarding monitoring, operation, insurance or bonding.i-; 

financial responsibility, closure, and remedial action); and " ~e"

4. Include such requirements as the director deems necessary regard- :".;t 

ing testing and providing of information to the director with respect to .~:::

the operation of the facility. .~.

(b) The director may apply the criteria set forth in paragraph (a) of this1;t 

subsection in establishing the conditions of each permit without separate '.'~~

establishment of regulations implementing such criteria. 

(c) For the purpose of expediting review and issuance of permits under 

this .subsection, the director may, consistent with the protection" of "~

human health and the environment, modify or waive permit application 

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

ulations except that there may be no modification or waiver of regulations regarding financial responsibility (including insurance) or of appli- -"" 

cable public participation procedures. -.' 

(d) The director may renew a research, development and demonstration" 

permit which has been issued pursuant to this subsection. The renewal .... 

term shall be no longer than one (1) year. A permit shall not be-renewed _. 

more than three (3) times. [I.C., § 39-4409, as added by 1983, ch. 154, 

§ 1,p. 416; am. 1986,ch. 148, § 4,p. 415; am. 1987,ch. 102, § 1,p. 204; 

am. 1988, ch. 7, § 1, p. 7; am. 1988, ch. 259, § 2, p. 498.] 

Compiler's notes. This section was 

amended by two 1988 acts which appear to be 

compatible and have been compiled together. 

The amendment by ch. 7, in the first sentence 

of subsection (5), inserted "issued"; and added 

subdivision (8)(d). The amendment by ch. 

259, in subdivision (2)(b), inserted "existing 

interim status surface impoundments"; and 

in the first sentence of subsection (5),' inserted "issued." 

.; ~:

The words enclosed in parentheses so appeared in the law as enacted. 

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

. as § 39-4411. . 

. Sections 1 and 3 of S.L. 1988, ch. 259 are 

compiled as §§ 39-4404 and 39-4413, respectively. 

Sec. to sec. ref. This section is referred to 

in § 39-4413. 

. 39·4410. Transportation of hazardous waste. - f.llT:J~~0ft!~~rir'

~nTT'lulgate hazardous waste transportation niles and regulat' 0 control the' tate and interstate transportation of" ally" regulated 

types and quantitIe ardous waste:'The and regulations shall be 

consistent with the rules an lati ssued by the United States de­

• 

partment of transportation an m tes environmental protection 

agency. The rules an ations shall also be . tent with the rules 

and regulatio e Idaho public utilities commission un ch consistency impair the primacy or the effectiveness of the state's hazaru.v~~

ste management program. In that case the board shall confer with the 
•
 

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"165	 • HAZARDOUS WASTE MANAGtiNT 39-4410

mission and endeavor to develop mutually acceptable transpo on 

rules regulations. If mutually acceptable rules and regulaji s cannot 

. be develope, e board shall promulgate transportation es and regula­ .. " "." 

.~:: tions that minimI conflict with the commission's es and regulations .... ,	 while assuring the prim authority and effe . eness of the state's hazardous waste management pro m. Rul nd regulations so promulgated 

by the board shall prevail over co ting rules and regulations of the 

commISSIOn. .. 

" 

(2) The hazardous wa ransportation rules a egulations shall apply 

to all transporters ederally regulated types and qua . ies of hazardous 

waste gener either by themselves or by others. These ru nd regulations s apply to any movement of a regulated quantity of h ous 

w. es to or from a hazardous waste facility or site. 

. H (3) The hazardous waste transportation rules and regulations shall pro­ .', " -,;.. vide for but not be limited to: 1

, (a) Standards for the containerization and labeling of hazardous wastes; 

.~-. i (b) Standards for the handling and placarding of hazardous waste shipments; 

(c) A hazardous waste tracking system requiring that: 

(i) All transporters of federally regulated types and quantities of hazardous waste obtain an identification number from the department, 

the environmental protection agency, or another approved state program, before accepting hazardous waste for transport; 

(ii) All shipments of federally regulated types and quantities of haz­

.. l'	 ardous waste to be shipped off site or received from off site be accompanied by a manifest or similar form describing the hazardous waste 

being shipped and its destination; 

(iii) A copy of each manifest or similar form be returned to the generator and/or originator of the shipment and a copy be retained by the 

transporter for a minimum of three (3) years. 

('4) The hazardous waste transportation rules and regulations may 

vide fo ecial routing of hazardous waste shipments in this stat hen 

- necessary to otect the public health, the public safety, or environ­ , . 

ment. 

(5) No commercia zardous waste disposal facili or site permitted 

under section 39-4409, I Code, shall recei regulated quantities of 

hazardous waste as defined by eral law m a motor vehicle or trailer 

unless the hazardous waste is acco .ed by a ..proper manifest and the 

transporter has obtained a specia er . from the Idaho transportation 

department as provided in s on 49-433, 0 Code. If an improperly 

documented shipment of rdous waste arrives a permitted commercial hazardous wast cility or site, the owner or opera of the facility or 

site shall immedi ely notify the Idaho transportation depa ent and the 

Idahodep ent of law enforcement. [I.C., § 39-4410, as adde 

ch. 15, 1, p. 416; am. 1984, ch. 205, § 2, p. 502; am. 1986, ch. 231, 

6 ,am. 1988, ch. 265, § 568, p. 549.] " ;;. 

", ,. 
-~~:: • {:j.: 

. ':....·t·

• e -~~ 39-4411 HEALTH AND SAFETY 166 ~/5­

;,?~

:f!­

"'t 

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Compiler's notes. Section 2 of S.L. 1986, 

ch. 231 is compiled as § 39-4417B. 

Sections 567 and 569 of S.L. 1988, ch. 265 

are compiled as §§ 36-1301 and 39-4426. 

Section 5 of S.L. 1986, ch. 231, read: "An 

emergency existing therefor, which emergency is hereby declared to exist, Section 

49-2512, Idaho Code, which is enacted by Section 4 of this act shall be in full force and 

effect on and after this act's passage and approval. The remaining provisions of this act 

shall be in full force and effect on and after 

January 1, 1987; provided, however, that the 

Idaho Transportation Board and Idaho 

Transportation Department shall be authorized to permit any person renewing or purchasing a vehicle registration on and after ..:t -.;<t July 1, 1986, to acquire a vehicle registration Sf 

endorsement prior to January 1, 1987, and'~

any receipts therefrom shall be placed in the .,.:J.l 

Hazardous Material/Hazardous Waste Trans- ~_. ,J~ I!ii 

portation Enforcement Account which is ere- A. 

ated in section 49-2507, Idaho Code, which is -::~

enacted by Section 4, of this act and Section'~~

49-2507, Idaho Code, which is enacted by Sec- :! 

tion 4 of this act shall be in full force and ., -.~

effect on and after July 1, 1986. Approved . -.f. 

April 3, 1986." 

Section 586 of S.L. 1987, ch. 265 provided 

that the act should become effective on and 

after January 1, 1989. J 

. " 

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

1, 1993]. - (1) Pursuant to the provisions of section 39-4405, Idaho Code, 

the board shall adopt, and amend as necessary, such rules and regulations 

relating to records, reporting, and monitoring as may be needed to achieve 

the purposes of this chapter. These rules may include, but shall not be 

limited to, prescribing procedures and requirements for: 

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

(b) The submittal of records and reports; 

(c) The taking of samples and the performing of tests and of analyses; 

(d) The use of approved monitoring methods and techniques; 

(e) The installation, calibration, use, and maintenance of monitoring 

equipment; and 

(f) The provision of relevant information to the department. 

(2) Sixty (60) days after promulgation of the criteria and lists specified 

under section 39-4407, Idaho Code, and the rules and regulations required 

under section 39-4405, Idaho Code, and subsection (1) of this section, the 

generation, transportation, treatment, storage, or disposal of a hazardous 

waste in this state by ,any person without reporting such activity to the 

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

of this section shall be unlawful. 

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

other representatives of the department, under any provisions of this chapter, shall be available to the public, unless the director certifies such information must be kept confidential. The director may make such certification 

upon a showing, to the satisfaction of the director, that the information, or 

parts thereof, if made public, would divulge methods, processes, or activities constituting trade secrets. Nothing in this subsection shall be construed as limiting the disclosure of information by the department to any 

officer, employee, or authorized representative of the state or the United 

• 

States, as necessary to carry out the provisions of this chapter or the provisions of RCRA. The provisions of this section shall not limit the department's authority to release confidential information during an emergency 

involving hazardous waste, if the director determines that release of the 

information is necessary to safeguard the public interest. 
•
 

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:'i . • HAZARDOUS WASTE MANAG&NT 39-4411 . ~, : 

(4) Each generator shall, at the discretion of the director, no later than 

thirty (30) days after the end of each calendar quarter submit a written 

report to the department including the following information: 

(a) The types and quantities of hazardous wastes generated; 

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

disposal by landfilling or other means of disposal; 

(c) The types and quantities of such wastes remaining in storage at the 

end of the reporting period; 

(d) Whether such wastes are destined for disposal or treatment in this 

state or whether such wastes are destined for disposal or treatment outside this state. • ~_ -l. • 

(5) The operator of each hazardous waste disposal facility or site in the 

state shall, no later than thirty (30) days after the end of each calendar 

quarter, submit a written report to the department providing information 

on the types and quantities of wastes received which were generated in 

Idaho, and information on the types and quantities of wastes received 

which were generated in other states. 

(6) Prior to December 31 of each year the department shall submit a 

report to the governor and the legislature detailing the types and quantities of hazardous wastes generated in this state, the types and quantities of 

" such' wastes shipped for treatment and disposal by landfilling or other 

means of disposal, the types and quantities of such wastes remaining in 

storage at the end of the most recent reporting period and the types and 

quantities of hazardous waste generated outside this state and shipped into 

this state for storage or disposal. [I.C., § 39-4411, as added by 1983, ch. 154, 

§ 1, p. 416; am. 1984, ch. 258, § 1, p. 618; am. 1986, ch. 148, § 5, p. 415.] 

Compiler's notes. For this section as ef- Sections 4 and 6 of S.L. 1986, ch. 148 are 

fective July 1, 1993, see the following section, compiled as §§ 39-4409 and 39-4413. 

also numbered § 39-4411. 

39-4411. Records - Reporting - Monitoring [Effective July 1, 

1993]. - (1) Pursuant to the provisions of section 39-4405, Idaho Code, the 

board shall adopt, and amend as necessary, such rules and regulations 

r· relating to records, reporting, and monitoring as may be needed to achieve "f the purposes of this chapter. These rules may include, but shall not be 

limited to, prescribing procedures and requirements for: " 

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

'(b) The submittal of records and reports; , , t.e. , 

, - , (c) The taking of samples' and the performing of tests and of analyses; , (d) The use of approved monitoring methods and techniques;' I 

y- : (e) The installation, calibration, use,and maintenance' of monitoring ~.:-. ~. ,

I equipment; and 

• 

C' 

," (f) The provision of relevant information to the department. , (2) Sixty (60) days after promulgation of the criteria and lists specified I . 

r under section 39-4407, Idaho Code, and the rules and regulations required e. : under section 39-4405, Idaho Code, and subsection (1) of this section, the 

generation, transportation, treatment, storage, or disposal of a hazardous 

-, 

waste in this state by any person without reporting such activity to the 
•
 

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I
 

I
 

I 

j 

I 

• I 

j 

I 

I 

•.... ­

39-4411 • HEALTH AND SAFETY • 168· . 

- . . 

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

of this section shall be unlawful. 

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

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

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

thereof, if made public, would divulge methods, processes, or activities con- ., 

stituting trade secrets, in which case the information shall be subject' to '. 

disclosure according to chapter 3, title 9, Idaho Code. Nothing in this subsection shall be construed as limiting the disclosure of information by the .c..~.: ....... '
 

department to any officer, employee, or authorized representative of the'" , 

state or the United States, as necessary to carry out the provisions of this _._ 

chapter or the provisions of RCRA. The provisions of this section shall not ','" '-'" ...-._..... 

limit the department's authority to release confidential information during ~I':';.:', . ~""-~

an emergency involving hazardous waste, if the director determines that=,..; 

release of the information is necessary to safeguard the public interest. 

(4) Each generator shall, at the discretion of the director, no later than 

thirty (30) days after the end of each calendar quarter submit a written 

report to the department including the following information: 

(a) /I'he types and quantities of hazardous wastes generated;
 

(b)' The types and quantities of such wastes shipped for treatment and
 

disposal by landfilling or other means of disposal;
 

(c) The types and quantities of such wastes remaining in storage at the
 

end of the reporting period;
 

(d) Whether such wastes are destined for disposal or treatment in this
 

state or whether such wastes are destined for disposal or treatment out­


side this state.
 

(5) The operator of each hazardous waste disposal facility or site in the 

state shall, no later than thirty (30) days after the end ofeach calendar 

quarter, submit a written report to the department providing information' 

on the types and quantities of wastes received which were generated in' 

Idaho, and information on the types and quantities of wastes received 

which were generated in other states.. . .: 

(6) Prior to December 31 of each year the department shall submit a 

report to the governor and the legislature detailing the types and quantities of hazardous wastes generated in this state, the types and quantities of 

such wastes shipped for treatment and disposal by landfilling or other 

means of disposal, the types and quantities of such wastes remaining in 

storage at the end of the most-recent 'reporting period arid the types and 

quantities of hazardous waste generated outside this state and shipped into 

this stateforstorage or disposal. [I.e., § 39-4111, as addedby 1975, ch. 180, 

§ 2, p. 486; am. 1978, ch. 160, § 1, p. 348; am. 1983,ch. 153, § 8, p. 407; 

am.. 1988; ch. 264, § 16, p. 519; am. 1990, ch. 213, § 43, p. 480.] 

Compiler's notes. For this section as ef-. Section 42 of S.L. 1990, ch. 213 is compiled 

fective until July 1, 1993, see the preceding' as § 39-1393. . 

section, also numbered § 39-4411. 
• • -' 

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169	 HAZARDOUS WASTE MANAGEMENT 39-4412 

9-4412. Inspections - Right of entry [Effective July 1, 1993]. ­

(1) 11 inspections and searches conducted under the authority of this cha ­

ter. s all be performed in conformity with the prohibitions against un asonab searches and seizures contained in the fourth amendment t the 

constit ion of the United States and article I, section 17, of the co stitution of th state of Idaho. The state shall not, under the authority granted 

by this ch ter, conduct warrantless administrative searches f private 

property in e absence of either consent from the property ower or occu­ ... 

.: pier or exige circumstances such as a public health 

resentation of apor e vironmental 

emergency. 

(2) For the pu oses of developing or enforcing any ovision of this 

chapter or any ru or regulation authorized by this apter, any duly 

authorized state em oyee or representative may, upo 

propriate credentials, at any reasonable time: 

(a) Enter upon any ivate or public property were hazardous wastes 

are or have been gener ted, transported, treate stored, or disposed of to 

inspect and to secure sa les of such wastes, eir containers, and their 

labels; 

(b) Enter into any aircraft, ehicle, vessel, . ail car, trailer, van, or other 

means of conveyance where h zardous wa tes are or have been contained 

to inspect and to secure samp es of su wastes, their containers, and 

their labels; 

(c) Enter any private or public pr y, or means of conveyance, where 

. records, reports,	 information or te results relating to the generation, 

transportation, treatment, storag ,0 disposal of hazardous wastes exist 

to inspect and copy such docu ents. 

(3) Upon request by an autho zed agen of a property owner or facility 

operator, the department shall rovide the p operty owner or facility operator with a receipt for sample takenand a co of sample analysis. Duplicate samples shall similar be provided upo request if the requesting 

party agrees to have the mples analyzed and share the results of the 

analysis with the depa ment. 

(4) The right of entr of a duly authorized state e ployee or representative shall not be subj ct to the waiver of any potenti 1 tort liability of the 

facility owner or op rator. The right of entry of a dul authorized state or 

health district em oyee shall not be subject to any confi entiality requirements other th those specified. in section 39-4411(3), daho Code, and 

chapter 3, titl 9, Idaho Code. The right of entry of a pri ate contractor 

working in a epresentative capacity for the department rna however, be 

made subje to additional confidentiality requirements so 10 g as those 

requirem ts do not interfere unreasonably with the developmei t of information the department or the transmission of information om the t . : 

.'"' .:..~... contra or to the department or the United States environmental rotection gency. . ... :. ( Any magistrate or district court judge is authorized to' issue admi istrative search warrant upon a .request from the director describ g 

asonable cause for issuance of the warrant or the existence of a reaso ­
1 

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

~r:r 39-4413 HEALTH AND SAFE. 170 ·Jbt 

]f 

-'~. able program of inspection. [I.C., § 39-4412, as added by 1983, ch. 15 1, -~

416; am. 1990, ch. 213, § 44, p. 480.] ::fJ

";"~'

C piler's notes. For this section as in 

effect ntil July 1, 1993, see the bound volume. 

Section 45 of S.L. 1990, ch. 213 is compiled 

as § 39-5 1. 

Section 1 of S.L. 1990, ch. 213 as 

'~:~' amended by § 16 of S.L. 1991, h. 329 pro- .!~

vided that §§ 3 through 45 a a 48 through ..:.~

110 of the act should take eff ct July 1, 1993 .~

and that §§ 1,2,46 and 47 ould take effect :it . -'l July 1, 1990.	 ._ :'~

39-4413. nforcement procedures. - (A) Whene r the director de- -!:.''1: "~i!

termines that ny person is in violation of any provisi n of this chapter or i 

1flJ any permit, st ndard, regulation, condition, req rement, compliance 3[1 

. ;~'!i"

agreement or ord issued or promulgated pursuan to this chapter, one or ::'J.. '.'~ more of ~'... ?:'~. the follow' g actions may be taken: '	 ., •;:9 

··r~ (1) ADMINISTRA IVE ENFORCEMENT A IONS.	 .,,~

(a) Notice. The dire tor may commence an dministrative enforcement -t action by issuing a itten notice of viol ion. The notice of violation .1 shall identify the aIle d violation with pecificity, shall specify each .. provision of the act, rul regulation, p rmit or order which has been .'j::j 

violated, and shall state e amount civil penalty claimed for each :Of 

violation. The notice of vio tion sha inform the person to whom it is'~ directed of an opportunity to confe with the director or the director's 

designee in a compliance confe en concerning the alleged violation. A' ..~: i 

written response may be require ithin fifteen (15) days of receipt ofthe 

notice of violation by the pers n to whom it is directed. 

(b) Scheduling Compliance Co fere ceo If a recipient of a notice of viola­


tion contacts the departmen within ifteen (15) days of the receipt of
 

notice, the recipient shall e entitled 0 a compliance conference. The
 

conference shall be held wrthin twenty ( 0) days of the date of receipt of
 

notice, unless a later dat is agreed upon b tween the parties. If a compli­


ance conference is not equested, the direc r may proceed with a civil
 

enforcement action a provided in subsectio (3) of this section.
 

(c) Compliance Co renee. The compliance co erence shall provide 'an
 

opportunity for the ecipient of a 'notice ofviolati to explain the circum­


stances of the al eged violation and, where app opriate, to present a
 

proposal forre edying damage caused by the aIle ed violation and for
 

assuring futur compliance. If the recipient and the 'rector agree- on a
 

plan to reme y damage caused by the alleged violat n and to assure
 

, future corny iance, they may enter into' a consent order rmalizing their
 

agreemen . The consent order may include a provision r payment of
 

any agr d civil penalty. .
 

(d) Eff t of Consent Order. A consent order shall be effect! 'e immedi-' 

'ately	 pon signing by both parties and shall preclude any civ enforce­


men action for the same alleged violation. If a party does no comply
 

• 

wi the terms of the consent order, the director may seek and 00 ain in 

a y appropriate district court specific performance of the consent rder 

nd such other relief as authorized in this chapter. . 

(e) Failure to Reach Agreement on Consent Order. If the parties cann t 

reach agreement on a consent'order within sixty (60) days after th 
•
 

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171 • HAZARDOUS WASTE MANAGIENT

ceipt of the notice of violation, or if the recipient does not request 

c pliance conference pursuant to subsection (A)(l)(b) of this section, t e 

di ctor may commence and prosecute a civil enforcement action in istricf court, in accordance with subsection (A)(3) of this section. , " 

(2) P MIT SUSPENSION OR REVOCATION PROCEEDING .. 

(a) Gro nds. The director may revoke or temporarily suspend t permit 

of any h ardous waste facility or site pursuant to the ground provided 

in subsect n (6) of section 39-4409, Idaho Code. 

A violatio that is shown to have occurred as the result f an unforeseeable act 0 God despite a permitted party's reasonable fforts to comply with all a licable legal requirements shall not b grounds" for a 

suspension or r ocation. 

(b) Notice of Hea . g. The director shall commence 

or revocation action y giving a permitted party a tten notice of intent 

to suspend or revoke. he notice shall inform the p rmitted party of facts 

or conduct which war nt suspension or revoca on of the permit. The 

notice, hearing, and reco d requirements for co ested cases contained in 

the Idaho administrative rocedure act, chapt r 52, title 67, Idaho Code, 

"and subsection (A)(2)(c) of his section shal apply to proceedings initiated under this subsection. evocation or suspension of a permit shall 

become final fifteen (15) day after deli ery of the notice of intent to 

revoke or suspend unless the ermitt party requests a hearing. 

(c) Administrative Hearing Pro isio . 

(i) Upon a timely request by a it holder for a hearing to review 

the director's action under subsec n (A)(2)(b) of this section, the director shall promptly conduct a he rin open to the public. The contested 

case provisions of the Idaho a inist tive procedure act shall apply to 

all hearings conducted und r this su section. . 

(ii) The director shall hav the authori to request from the district 

court in and for Ada coui y or any other propriate district court the 

issuance of an order in e nature of a sub ena compelling the attendance and testimony 0 witnesses and the pr duction before the director of papers, books, rawings, documents, tes results, and other evidence relevant to permit suspension or revo tion investigation or 

adjudication. 

(iii) After the haring, the director shall issue a 

ting forth fin . gs of fact, conclusions of law and n order. Anag­

-grieved perso subject to the director's order may see itsreview as a 

final order i a district court as provided by the Idaho dministrative 

procedure ct. District court review of the director's deci ion shall be 

limited the record developed before the director. ."" 

(3) CIV ENFORCEMENT ACTION. The attorney general ay comd prosecute in district court a civil enforcement act n. Civil 

enforc ent actions shall be commenced and prosecuted in the istrict 

cou in and for the county in which the alleged violation occurre and 

rna be brought against any person who is alleged to have violate any 

p vision of this chapter or any rule, regulation, permit, condition, e­

." 

-.. uirement, consent order, or order which has become effective pursua t 
172 , ..
 

•
 

•
 

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39-4417A e HEALTH AND SAFEI 

"" to this chapter. Such action may be brought to compel compliance with 

'any provision of this chapter or with any rule, regulation, permit orrder 

p;' ulgated hereunder, and for any relief or remedies authorized in this 

chap r. The director shall not be required to initiate or pro cute an 

admini rative action before the attorney general may co ence and 

prosecute civil enforcement action. In addition, the atto ey general 

. may delega this authority regarding civil enforceme9,(actions to the 

prosecuting at ey of the county where a civil6nforment action may ari~. .. . . " 

(B) ACTIONS AG ST GUARANTORS. Ifthe er or operator is in 

bankruptcy, reorganizafi n or other arrangemexy pursuant to the federal 

bankruptcy code, or where isdiction cannot obtained oyer an owner or 

operator likely to be solvent t the time of udgment, an action may be 

brought directly against a guar tor of fin cial responsibility by the state 

or any injured party for any claim lSI from conduct for which guarantees of financial responsibility have n made. The' guarantor may invoke' 

. all rights and defenseswhich woul .n:v~ been. available to the owner or 

. :'. -..'operator ana all rights':a:nd crefe' es no:' ·"Ily·'·av'aiTable -t6.lhe··guaf~ntor . 

'(C) LIMITATION' OF ACTI FOR A INISTRATIVE AND CIVIL 

COURT PROCEEDINGS B bUGHT UND THE PROVISIONS OF 

THIS CHAPTER. No civil r administrative proc eding may be brought to 

rec<?ver for a violation 0 his chapter or any perrm standard, regulation, 

condition, requireme or order issued or promulga d pursuant to this 

chapter more than 0 (2) years after the director had Ie owledge or ought 

reasonably to ha e had knowledge of the violation. [1. . § 39-4413, as 

added by 1983, . 154, § 1, p. 416; am. 1986, ch. 148, § 6, p. 5; am. 1988, 

ch. 259, § 3 p. 498; am. 1989, ch. 38, § 1, p. 49.] 

Compil s notes. The federal bankruptcy Section 2 of S.L. 1988, ch. 259 is mpiled 

code refe ed to in subsection (B) of this sec- as § 39-4409. 

tion is ompiled as 11 U.S.C., § 101 et seq. 

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

as 39-4411.
 

3· 17B.. Hazardous waste training, emergency and monitormg 

account. l) There is hereby created an account in the dedicated. fund in 

the state treas to be designated the hazardous waste-training, 'emergency and monitorin ccount. / /' 

(2) The account shall c ist of: . 

(a) Moneys appropriated to . account· 

(b) Moneys as provided in sectiori>: - 432, Idaho Code; 

(c) Donations, gifts and grants om an source; and 

(d) Any other moneys whi may hereafter provided by law. 

.(3) Moneys in the ace t may be appropriated any or all of the 

following purposes: 

(a) Acquisitio property and equipment by the departmen health 

and welfa to analyze, monitor, contain, collector dispose of haza 

wast , 
. ..'. ',' .' " " '" ... , ", ,'. .

r
 

•

I
 

Ii 

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• 

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173 HAZARDOUS WASTE MANAGEMENT 39-4423 

(li mployment of or contracting with necessary personnel to analyze 

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

(c) Emplo t of individuals or contracting with individuals corporations to" respo throughout the state to health and ironmental 

problems which may aused by hazardous waste emergencies or spills, 

improperly packaged or 11 led hazardous waste-Sr the alleviation of 

damages to the people and en nment of t 'state of Idaho caused by 

"such emergencies or spills. 

(d) Taking removal or remedial ion lating to hazardous wastes 

which the department deems n essary to pre t, minimize or mitigate 

damage to the public he and welfare or t nvironment. "[I.C., 

§ 39-4417B, as added 1984, ch. 205, § 3, p. 502; am. 

p. 627.] 

""Compiler' • otes, Sections 1 andS ofS.L."" 

1986, ch 1 are compiled as §§ 39-4410 and 

39-4 , respectively. -: 

39-4423. Disposal ofrestricted hazardous wastes prohibited. - (1) 

Notwithstanding any other provision oflaw to the contrary, no person shall 

discharge, deposit, inject, dump, spill, leak, or place any restricted hazardous waste, as defined in section 39-4403, Idaho Code, into or on any land or 

water at a commercial- hazardous waste facility or site. 

(2) The department may issue a variance froin the requirements of subsection (1) of this section, if, in the judgment of the director, application of 

the" requirements would cause undue hardship and the" granting of the 

variance would not be harmful to the public interest or inconsistent with 

RCRA requirements. In issuing the variance, the director shall take into 

account: 

(a) The long-term uncertainties associated with land" disposal; 

(b) The goal of managing hazardous wastes in an appropriate manner in 

the first instance; and 

(c) The persistence, toxicity, mobility, and propensity to bioaccumulate 

of such hazardous wastes and their hazardous constituents. 

(3) -Cal "The board shall promulgate rules and regulations specifying 

those levels or methods of treatment, if any, which substantially dimin­

"ish" the toxicity of the waste or- substantially reduce the likelihood of 

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

and long-term threats to human health and the environment are minimized. 

(b) If such restricted hazardous waste has been treated to the level or by 

a method specified in regulations promulgated under this subsection, 

such waste or residue thereof shall not be subject to the prohibition in 

subsection (1) of this section and may be disposed of in a land disposal 

facility which meets the requirements of this chapter. [I.C., § 39-4423, as 

added by 1986, ch. 324, § 2, p. 794.] 
• 

39-4424 HEALTH AND SAFETY 

Compiler's notes. Section 1 of S.L. 1986, 

ch. 324 is compiled as § 39-4403. .: )4 -'~::~1

39-4424. .Disposal ofmanifested waste. - Manifested waste, as that '-:?i 

term is defined in section 39-4403, Idaho Code, shall only be treated, stored '~:tf or disposed of in this state at a permitted hazardous waste treatment, 

storage or disposal facility unless the burning of such manifested waste to 

produce heat is otherwise lawful. [I.C., § 39-4424, as added by.1989, ch. 

253, § 2, p. 626.] 

'Compiler's notes. Section 1 of S.L. 1989, Section 3 of S.L. 1989, ch. 253 declared an 

ch. 253 is compiled as § 39-4403. emergency. Approved March 29, 1989. 

39-4425. [Reserved.] 

9-4426. Appointment of health e, inspectors. - (1) The department ';:;.. / hea and welfare shall assign, a sufficient number of employees nd " _--l"" 

•
 

equip nt to inspect hazardous waste facilities or sites permittednder .4;
 

section 3 -4409, Idaho Code, and located in Idaho where disposal 0 azard- ."
 

ous waste curs for the purpose .of assuring the protection -of e .health -~
 

and safety of e public by monitoring the receipt and handli g of hazard­


ous wastes whi have been transported by common ca ier. '. -. '.
 

(2) The employ of the department of health and we are designated in 

subsection (1) of thi ection shall be agents of the aho transportation 

department and the pu .c utilities commission for e purpose of collecting 

regulatory and registrati fees pursuant to se ions 61-811 and .61-812, 

Idaho Code, and for collectin fees and permit pursuant to chapter 4, title 

49, Idaho Code, which fees hav not otherwi e been lawfully paid by trans­ ::./.. 

".~ .~ porters to the public utilities corn ission he Idaho transportation department or a county assessor in this sf e nd for issuing permits pursuant to 

section 49-22202 [49-2202], Idaho Co All moneys collected by the department's employees as agents of the aho ansportation department and the 

public utilities commission sha be remitf to the state treasurer for deposit in the proper account s provided by aw. _ . ,-,,;., 

, (3) _All employees of th epartment designa d pursuant to subsection 

(1) of this section shall ert proper authorities 0 eace officers regarding 

violations pursuant t this chapter, 'violations purse t to title '61" Idaho 

Code, and violatio pursuant to title 49, Idaho Code, a d violations to any 

rules and regul ons issued pursuant to any of theafo mentioned code 

sections. 

• 

All actio rought for violations of the provisions of this ch ter or rules 

and regu tions promulgated pursuant thereto shall be brought a: provided 

for in is chapter. All actions brought for violations of the prov ions of 

title 1, Idaho Code, or of title 49, Idaho Code, shall be brought as pr ided 

i ose titles. u.c., § 39-4426, as added by 1984, ch. 205, § 4, p. 502; 

986, ch. 231, § 3, p. 627; am. 1988, ch. 265, § 569, p. 549.] 

.:. -~, . 

••J!';-­
I .....'-4 

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175 NATURAL DEATH ACT 39-4432 

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

ence "49-2202" in subsection (2) was inserted are compiled as §§ 39-4410 and 40-70l. 

by the compiler. Section 586 of S.L. 1987, ch. 265 provided 

Sections 2 and 4 of S.L. 1986, ch. 231 are that the act should become effective on and 

compiled as §§ 39-4417B and 44-2501 ­ after January I, 1989. 44-2515, respectively. 

39-4429. Books.and records to be preserved - Entry and inspection 

by department of health and welfare. 

"Water" and "Chemical" Distinguished. 

The legislature has indicated by its use of 

the word "chemical" in several statutes that 

. . . . 

water should not be considered tobe a "chemical." Moosman v. Idaho Horse· Racing 

Comm'n, 117 Idaho 949, 793 P.2d 181 (1990). ' 

. . . 

~4432. Distribution-of hazardous waste. disposal feerevenues. 

.,,,;, - T .revenues ,received from thefees imposed by .this chapter and-any 

I' penaltie interest, or deficiency additions, 'shail be paid over 'to ~he state 

treasurer B the department to be distributed as follows: -: ," 

(1) An amo t of money to maintain the hazardotis wastedisposal fee 

refund account, ich is hereby created, and from which allrefunds authorized to be paid by is act shall be paid, at a monthly balance of ten 

thousand dollars ($10, ) or at such greater s~s in the opinion of the 

department may' be neede to meet reasonable/requirements imposed on 

the hazardous waste disposa fee refund efuunt. ' 

(2) The balance remaining WI' the te treasurer after deducting the 

amounts in (1) above, shall be rerm periodically but no less frequently 

than quarterly as follows: ninety-fi e p cent (95%) shall be remitted to the 

hazardous waste training, e rgency an monitoring account created in 

section 39-4417B, Idaho Co ,and the rernai ing five percent (5%) shall be 

remitted to the county asurer of the county 0 counties where the activity occurred which c sed the fees to be assessed p suant "to" this chapter. 

Moneys shall be portioned to the counties in the sa proportional manner in which ey were collected. Moneys returned to ounties shall be 

utilized b e county to respond to health and 'environm tal problems 

which ay be caused by hazardous waste emergencies or spill , or. improperly andled or packaged hazardous waste. [I.C.; § 39-4432;' as ded by 

4, ch. 205, § 10, p. 502; am. 1989, ch. 419, § 1, p. "1023.] , 

CHAPTER 45
 

NATURAL DEATH ACT
 

SECTION. 

,39-4506. 

39-4507. 

39-4508. 

attorney for 39-4509. 

Revocation.
 

Execution of directive.
 

Immunity.
 

General provisions.
 

SECTION. 

39-4502. Statement of policy. 

39-4503. Definitions. 

39c4504. Living will. 

39-4505. Durable power of 

health care. 
VIr- ," """f"\.,'. " 

.l{,jl {} 'J" . .. . . . . 10, • .~~V . ..... . 0 .' • • L .4 \ ' I _ t" . ;". ,... \ '. . '. r v."jT 

IDAHO CODE
 

CONTAINING THE 

GENERAL LAWS OF IDAHO 

ANNOTATED 

ORIGINALLY PUBLISHED BY AUTHORITY OF 

LAWS 1947, CHAPTER 224 

REPUBLISHED BY AUTHORITY OF 

LAWS 1949, CHAPTER 167 AS AMENDED 

• 

Compiled Under the Supervision of the 

Idaho Code Commission 

PHILLIP M. BARBER 

WILLIS E. SULLIVAN JESS B. HAWLEY, JR. 

COMMISSIONERS 

VOLUME SEVEN A 

THE MICHIE COMPANY 

Law Publishers 

CHARLOTIESVILLE, VIRGINIA 

•
 
I 

39-4403 HEALTH AND SAFETY 300 

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

the time they are generated through transportation, treatment, 'storage, 

and disposal; and, 

(c) To assure the safe and adequate -management of hazardous wastes 

within the state. [I.C;, § 39-4402, as lidded by 1983, ch. 154, § 1, p. 416.] 

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

Collateral References. Validity and con­ governmental entities. 59 A.L.R.3d 1244. struction of statutes, ordinances, or regulations controlling discharge of industrial 

wastes into sewer systems. 47 A.L.R.3d 1224. 

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

(1) "Board" means the Idaho board of health and welfare. 

(2)" mmercial hazardous waste facility or site" means any hazardous 

waste fac ity whose primary business is the treatment, storage or disposal, 

for a fee 0 other consideration, of hazardous' waste generated offsite by 

generators ot r than the owner and operator of the facility. 

(3) "Depart nt" means the Idaho department of health and welfare. 

(4) "Director" eans the director of the Idaho department of health and 

welfare or the direc r's authorized agent. 

(5) "Disposal" mea the discharge, deposit, injection, dumping, spilling, 

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

that such hazardous w te or any constituent thereof may enter the 

environment or be emitte into the air or discharged into any waters, 

including ground waters. 

(6) "Generator" means any p son, who by virtue of ownership, management, or control, is responsible causing or allowing to be caused the 

creation of a hazardous waste. 

(7) "Hazardous waste" means a wa e or combination of wastes ofa solid, 

liquid, semisolid, or contained gaseous m which, because of its quantity, 

concentration or characteristics (physical, emical or biological) may: 

(a) Cause or significantly contribute to n increase' in deaths' or an 

increase in serious, irreversible or incapaci ting reversible illnesses; or 

(b) Pose a substantial threat to human heal or to the environment if 

improperly treated, stored, disposed of, or mana d. Such wastes include, 

. but are not limited to, materials which are toxic, orrosive, ignitible, or 

reactive, or materials which may have mutag ic, teratogenic, or 

carcinogenic properties but do not include solid or di olved material in 

domestic sewage, or solid or dissolved materials in irriga: .on return flows 

or industrial discharges which are point sources subj t to national 

pollution discharge elimination system permits under the eral Water 

Pollution Control' Act, as amended, 33 U.S.C., Section 1251 t seq., or 

source, special nuclear, or by-product material as defined by th Atomic 

Energy Act of1954, as amended, 42 U.S.C., Section 2011 et seq. 

(8) "Hazardous waste management" means the systematic control 0 the 

collection, source separation, storage, treatment, transportation, proce ­

ing, and disposal of hazardous wastes. 

-;-.­

.j 
39-4404 HEALTH AND SAFETY 302 

Consistency with federal law. - The legislature intends 

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

3 -4404. 

will e ble the state to assume primacy over hazardous waste control from 

the fede I government. 

. ' The Ie . lature finds that the RCRA, as amended, 42 U.S.C., Section 

-Q901 et se ,and regulations adopted pursuant thereto, establish complex 

.' and detaile provisions for regulation of those who generate, transport, 

'treat, store, nd dispose of hazardous wastes. The legislature cannot 

conveniently 0 advantageously set forth in this chapter all the requirements of all oftH regulations which have been or will be established under 

RCRA. However, the provisions of this chapter, the legislature desires t<L 

avoid the existenc of duplicative, overlapping or conflicting state and 

federal regulatory sy ms. 

Therefore, the boa is directed to promulgate rules and regulations 

which are in substance onsistent with federal regulations adopted by the 

administrator of the Urated States environmental protection agency to 

implement RCRA. The bo rd may not promulgate rules and regulations 

governing activities affecte by such federal regulations until at least six 

(6) months after the promulg tion of such regulations by the environmental protection agency. The six (6) months' delay shall apply, but not be 

limited, to rules and regulat ns concerning mining waste, mineral 

processing waste, and all other m erials under study by the administrator 

of the environmental protection a ncy as required by 42 U.S.C. sections 

6982(f) and 6982(p). Until such tim as the board has promulgated rules 

and regulations concerning mining nd mineral wastes and materials 

under study by the administrator, thos wastes and materials shall not be 

considered or defined as hazardous waste' under this chapter. Farmers and 

ranchers who treat, store, or dispose waste pesticides from their 

operations on lands owned or controlled by hem shall not be required by 

board rules or regulations to do anything mor than followthe instructions 

on the pesticide label and triple rinse empty co tainers in accordance with 

the RCRA regulations of the environmental pro ection agency. The board 

may not promulgate any rule or regulation that w uld impose conditions or 

requirements more stringent or broader in scope an the RCRA regulations of the environmental protection agency. The oard may, however, 

promulgate procedural rules and regulations and' es and regulations 

specifically authorized by this chapter or other stat statutes without 

showing that those rules and regulations are required y RCRA or the 

regulations of the environmental protection agency; pro .ded that those 

rules and regulations shall not conflict with this section, ot er sections of 

this chapter, RCRA, or the rules and regulations of the e vironmental 

protection agency. Any rule or regulation promulgated by the oard shall 

be valid until it is repealed or modified through the administrat e process 

of section 67-5201, Idaho Code, et seq. [I.C., § 39-4404, as added y 1983, 

ch. 154, § 1, p. 416.] 

39-4405. Rules and regulations in general. - Pursuant to the 

procedures established by the Idaho administrative procedures act, chap er 
39-4408 HEALTH AND SAFETY 304 

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

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

the board in a list of hazardous wastes. 

(2) The board may adopt, and amend from time to time a list or lists of 

hazardous wastes. The board may, with public notice but without the 

necessity of a public hearing, list as hazardous any waste or combination of 

wastes determined to be hazardous by the United States environmental 

protection agency. [I.C.; § 39-4407, as added by 1983, ch. 154, § 1, p. 416.] 

Sec. to sec. ref. This section is referred to 

in § 39-4411. 

Unauthorized treatment, storage, release, or disposal of 

hazardou te prohibited. - No person shall treat or store hasardous 

waste, nor shall a erson discharge, incinerate, release, spill, place, or 

dispose any hazardous w in such a manner that the waste, or any 

constituent thereof, may enter the [ronment, unless the department has 

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

activity involved or exempted the activity from p it requirements. [l.C., 

§ 39-4408, as added by 1983, ch. 154, § 1, p. 416.] 

39 09. Permit· requirements for hazardous waste treatment 

storage, or disposal facilities. - (1) No person shall construct, operate, 

or modify azardous waste treatment, storage, or disposal facility or site 

without a pe it from the department. The owner.or operator of the facility 

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

The board may exe t classes or categories of hazardous waste treatment, 

storage, or disposal fa ilities from the permit requirement if the exemption 

is in the public interest d consistent with RCRA requirements, The fact 

that a class or category of ch facilities is not required to obtain a federal 

permit shall be persuasive e idence that an exemption is in the public 

interest. Interim status granted . RCRA or a permit issued by the United 

States environmental protection a ncy prior to the date that the state 

program is authorized by the adminis tor of that agency shall be adopted 

by the department as a state granted in rim status or as a state granted 

permit until the department issues a new st e permit. 

(2) The board shall promulgate rules and gulations establishing the 

terms and conditions for issuing permits to tli described facilities and 

sites, The rules and regulations shall provide for, ut not be limited to: 

(a) Standards and procedures for the safe operation nd maintenance of 

the facilities and sites; 

(b) Education and training qualifications of personnel a the facilities 

and sites; 

(c) Contractual commitment or consent to each facility or sit rom all 

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

(d) Monetary assurances in such form and amount as are necessar or 

effective management, maintenance, and monitoring of the facilities an 

sites during and after operation; 
39-4410 HEALTH AND SAFETY 306 

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

p mulgated by the board shall prevail over conflicting rules and regulatio of the commission. 

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

to all t ansporters of federally regulated types and quantities of hazardous 

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

regulatio shall apply to any movement of hazardous wastes to or from a 

hazardous aste facility or site. 

(3) The h ardous waste transportation rules and regulations shall 

provide for bu ot be limited to: 

(a) Standards or the containerization and labeling of hazardous wastes; 

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

shipments; 

(c) A hazardous w te tracking system requiring that:" 

(i) All transport s of federal regulated types and quantities of 

hazardous waste ob in an identification number from the department, 

the environmental prot ction agency, or another approved state program, 

before accepting hazardo s waste for transport; 

(ii) All shipments of derally regulated types and quantities of 

hazardous waste to be sped off site or received from off site be 

accompanied by a manifest r similar form describing the hazardous 

waste being shipped and its de ination; 

(iii) A copy of each manife or similar form be returned to the 

generator and/or originator of the hipment and a copy be retained by the
 

transporter for a minimum of three ) years.
 

(4) The hazardous waste transpo tion rules and regulations may 

provide for special routing of hazardous aste shipments in this state when 

necessary to protect the public health, t public safety, or the environment. 

(5) The owner or operator of a motor vehi le or trailer transporting on 

the highways or public roads of this state haz dous waste required to be 

manifested shall be required to purchase a ha rdous waste trip permit. 

The permit shall be issued by the Idaho transpo ation department upon 

the payment of a fee of twenty dollars ($20.0 for each single trip 

movement or transit of the vehicle or trailer betwe the point of origin 

and destination as set forth in the permit. No permit all be required for 

transportation of five hundred (500) pounds or less ofha rdous waste by a 

generator twenty (20) miles or less to an accumulation sit from which the 

hazardous waste will ultimately be transported for fina disposal. The 

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

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

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

pursuant to this section by the Idaho transportation departmen shall be 

remitted to the state treasurer for deposit in the hazardous waste t ining, 

emergency and monitoring account created in section 39-4417B, daho 

Code. An amount of money equal to the actual and reasonable co of 

issuing the hazardous waste trip permit and collecting the mon s 

pursuant thereto as determined by the Idaho transportation departme 

\
 

I 
l 

39-4412 HEALTH AND SAFETY 308 

di losure of information by the department to any officer, employee, or 

aut rized representative of the state or the United States, as necessary to 

carry t the provisions of this chapter or the provisions of RCRA. The 

provisio of this section shall not limit the department's' authority to 

release co dential information during an emergency involving hazardous 

waste, if tH director determines that release of the information is 

necessary to sa guard the public interest. 

(4) Each gene tor shall, at the discretion of the director, no later than 

thirty (30) days r the end of each calendar quarter submit a written 

report to the departm t including the following information: 

(a) The types andqu tities of hazardous wastes generated; 

(b) The types and qua ities of such wastes shipped for treatment and 

disposal by landfilling or her means of disposal; 

(c) The types and quantitie of such wastes remaining in storage at the 

end of the reporting period; 

(d) Whether such wastes are tined for disposal or treatment in this 

state or whether such wastes a destined for disposal or treatment 

. outside this state. 

(5) The operator of each hazardous \V te disposal facility or site in the 

state shall, no later than thirty (30) day after the end of each calendar 

quarter, submit a written report to the dep ment providing information 

on the types and quantities of wastes receiv which were generated in 

Idaho, and information on the types and qua ities of wastes received 

which were generated in other states. 

(6) Prior to December 31 of each year the depa ent shall submit a 

report to the governor and the legislature detaih g the types and 

quantities of hazardous wastes generated in this stat the types and 

quantities of such wastes shipped for treatment and dispos by landfilling 

or other means of disposal, the types and quantities of uch wastes 

remaining in storage at the end of the most recent reporting per d and the 

types and quantities of hazardous waste generated outside this ate and 

shipped into this state for storage or disposal. H.C., § 39-4411, as a ed by 

1983, ch. 154, § 1, p. 416; am. 1984, ch. 258, § 1, p. 618.) 

Sec. to sec. ref. This section is referred to 

in § 39·4429. 

39-4412. Inspections - Right of entry. - (1) All inspections and 

searches conducted under the authority of this chapter shall be performed 

in conformity with the prohibitions against unreasonable searches and 

seizures contained in the fourth amendment to the constitution of the 

United States and article I, section 17, of the constitution of the state of 

Idaho. The state shall not, under the authority granted by this chapter, 

conduct warrantless administrative searches of private property in the 

absence of either consent from the property owner or occupier or exigent 

circumstances such as a public health or environmental emergency. 
39-4413 HEALTH AND SAFETY 310 

itten notice of violation. The notice shall state with reasonable 

s cificity the nature of the problem and likely actions which the 

rec ient should take to remedy the alleged violation. The notice shall 

also ate that a civil penalty could be imposed against the recipient if 

the vi ation is not remedied within thirty (30) days. The notice shall 

inform e person to whom it is directed of an opportunity to confer 

with the irector concerning the alleged violation. The notice may 

require a .tten response within fifteen (15) days. 

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

violation cont cts the department within fifteen (15) days of the time 

the recipient r eived the notice, the recipient shall be entitled to a 

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

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

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

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

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

department. 

3. Compliance Conference. e compliance conference shall provide an 

opportunity for a recipient f a notice of violation to explain the 

circumstances of the alleged violation and, where appropriate, to 

present a proposal for future mpliance. If the recipient and the 

director agree on a plan to bring he recipient into compliance, they 

may enter into a voluntary compli nee agreement formalizing their 

understanding. The compliance agre ent may include provisions for 

the payment of state costs associated vith the alleged violation and 

monetary assessments in lieu of civil pe lties. All funds secured by a 

compliance agreement shall be paid into he hazardous waste emergency account created by section 39-4417, I ho Code. 

4. Effect of Compliance Agreement. A comp . nee agreement shall be 

effective immediately upon its being signed. I party does not comply 

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

obtain in any appropriate district court specific erformance of the 

agreement and such other relief authorized by sec 'on 39-4414, Idaho 

Code, as the court considers to be just and reas able under the 

circumstances. 

(b) Permit Suspension or Revocation Proceedings. 

1. Grounds. The director may revoke or temporarily 

permit of any hazardous waste facility or site if the pe itted party 

fails to meet the requirements of a compliance agreement or if the 

permitted party commits a violation of the law or a permit whi 

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

to the environment; or 

(ii) Is repetitious of prior violations of the same or diffe nt 

provisions of the law; or 

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

ofa notice of violation. 
39-4414 HEALTH AND Slu'ETY	 312 

reasona to have had knowledge of the violation. [I.C., § 39-4413, as 

added by 1983, 4, § 1, p. 416.] 

Sec. to sec. ref. This section is re 

in §§ 39-4409,39-4429. 

3	 14. Remedies. - The remedies specified in this section are 

tive and nonexclusive. 

(1) NETARY PENALTIES. 

(a) An erson who makes .a false statement or representation in any 

applicati ,lab~l, manifest, record, report, permit or other document 

filed, mai . ined, or used for the purpose of complying with the 

provisions 0 his chapter shall be liable for a civil penalty not to exceed 

ten thousand lIars ($10,000) for each separate violation or for each day 

of a continuing . lation. 

(b) Any person 0 violates this chapter or any permit, standard, 

regulation, conditi ,requirement, compliance agreement, or order 

issued or promulgate pursuant to this chapter shall be liable for a civil 

penalty not to exceed n thousand dollars ($10,000) for each separate 

violation or for each day a continuing violation. 

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

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

with the law. 

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

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

agreement, or order issued or promul ted pursuant to this chapter may be 

assessed for: 

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

monitoring, or surveys which lead to evi ce of the violation; 

(b) The state's costs, including the re onable value of attorneys' 

services, for preparing and litigating the cas .. 

(c) The state's costs for mitigating, removing, orrecting or terminating 

adverse effects upon soil, air, or water qua 'ty resulting from the 

violation; . 

(d) The state's costs for impounding, storing, and [sposing of contaminated property; 

(e) Compensation for damages to publicly held resour es including but 

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

life to restore the resource to its highest previous use; 

(0 Compensation for damages to privately held resources in luding, but 

not limited to, livestock, land, water, or other personal pro erty, and 

compensation for court costs allowed by statute, reasonable arney's· 

fees for trial preparation and trial of the case, and all other rea nable 

costs of trial preparation and trial of the case; 

(g) Compensation for damages to personal health and .compensation or 

court costs allowed by statute, reasonable attorney's fees for hi 

preparation and trial of the case, and all other reasonable costs of trial 

preparation and trial of the case; 
':.: ,?,'~;:,;)/ ,~:,:;:::;:~ ?\Tr:;:~)~'~?!:,::"·;~~~X:(;;~:: ':~:;t::\?;' r'}/:> ::/,;':><:, :~ ,:<';/:Y" ·:~:,S:}(.~~~~':;~::~:;~~~,\~:'~,r:'::;,·:\,~:~~·~.:,:}:,::r:,~·~'~' ,:':', ,'::/:r~::?{,'~:<
 ,> 

. " 

•
 

•
 

•
 

39-4417 HEALTH AND SAFETY 314 

i 

i a civil action on that person's own behalf against any person alleged to I 

! have committed the violation. A person commencing an action under this ,j section shall be required to file a bond or equivalent security in an amount i 

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

,j

I (2) No action may be commenced under subsection (1) of this section if c 'f

I the department has commenced and is diligently prosecuting an adminis­

'j trative, civil," or criminal action to require compliance with the law. 

d Further, no action may be commenced under subsection (1) of this section ., unless the plaintiff has given the department sixty (60) days' notice and u 

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

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

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

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

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

matter ofright. 

(4) When issuing any final order in any action brought pursuant to this 

section, the court may award costs of litigation, including reasonable 

attorney and expert witness fees, to any prevailing party, whenever the 

court determines such an award is appropriate, except that the state of 

Idaho shall not be required to pay such costs in any citizen suit where the 

state has become a party. 

(5) Nothing in this section shall restrict any right which a person, or 

class of persons, may have under any other statute or the common law. 

[I.C., § 39-4416, as added by 1983, ch. 154, § 1, p. 416.] 

39-4417. Hazardous waste emergency account. ,(1) There is 

hereby created an account in the agency asset fund in the state treasury to 

be designated the hazardous waste emergency account. 

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

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

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

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

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

(3) Moneys in the account may be used by the director in the case of a 

hazardous waste emergency to pay the necessary costs of preventing, 

neutralizing, or mitigating any threat to the public health or safety, or to 

the environment caused by that emergency. 

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

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

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

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

drawn by the state auditor upon presentation of the proper vouchers. 

(6) Pending use, surplus moneys in the account shall be invested by the 

state treasurer in the same manner as provided under section 67-1210, 

Idaho Code. Interest earned on the investments shall be returned to the 

account. [I.C.; § 39-4417, as added by 1983, ch. 154, § I, p. 416.J 

.'.': : :: ..::.:.!,:.._.. :.~ .::":'~'.::, •-:">. _,~",.."';;"::'':.;'..:' _ : :.:. :~: -, ~:.: '-::.'"·:.:~:-r:._: ::=~~.:~: ,.::.'. _~: "_ ::_.: .. ~. '. 
39-4420 HEALTH AND SAFETY 316 

39-4420. Employment security. - (1) No employee of a hazardous 

waste generator, transporter or treatment, storage, or disposal facility or 

site shall be dismissed, suspended, or otherwise discriminated against 

because the employment testifies, provides information or otherwise assists 

in the enforcement or administration of the provisions ofthis chapter. 

(2) Any,employer who knowingly violates the provisions of subsection (1) 

of this section shall be liable for damages; costs and attorneys' fees, in 

addition to any other liabilty for relief authorized by this chapter, by any 

other statute, or by the common law. [I.C, § 39-4420, as added by 1983, ch. 

154, § 1, p. 416.] 

39-4421. Good samaritan protection. - (1) Notwithstanding any 

provision of law to the contrary, no person who provides assistance or 

advice in mitigating or attempting to mitigate the effects of an actual or 

threatened leakage, seepage, or other release of hazardous waste, or in 

preventing, cleaning up, or disposing of or in attempting to prevent, clean 

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

to civil liabilities or penalties of any type. 

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

not apply to any person: 

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

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

liable therefor; or 

(b) Who receives compensation other than reimbursement for out-ofpocket expenses for services in rendering such assistance or advice. 

(3) Nothing in section (1) above shall be construed to limit or otherwise 

affect the liability of any person for damages resulting from such person's 

gross negligence, or from such person's reckless, wanton, or intentional 

misconduct. [I.C., § 39-4421, as added by 1983, ch. 154, § 1, p. 416.] 

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

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

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

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

act. [I.C., § 39-4422, as added by 1983, ch. 154, § 1, p. 416.] 

Compiler's notes. For words "this act" see 

Compiler's notes, § 39-4401. 

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

health and w e shall assign a sufficient number of employees and 

equipment to inspec rdous waste facilities or sites permitted under 

section 39-4409, Idaho Co , d located in Idaho where disposal of 

hazardous waste occurs for the pu of assuring the protection of the 

health and safety of the public by monitori e receipt and handling of 

hazardous wastes which have been transported by co n carrier. 
39-4429 HEALTH AND SAFETY 318 

of the hazardous waste facility or site is liable for the preceding monthly 

period, and shall sign and transmit the same to the department, together 

with a remittance for such amount in the form required. 

(2) The department may relieve any person or class of persons from the 

obligation of filing monthly returns and may require the return to cover 

other reporting periods, but in no event shall returns be filed for a period. 

greater than three (3) months. [I.C., § 39-4428, as added by 1984, ch, 205, 

§ 6, p. 502.] 

39-4429. Books and records to be preserved - Entry and inspection by department of health and welfare. - Every person or entity 

subject to the impost tion of the fees specified in section 39-4427, Idaho 

Code, shall keep complete and accurate records, including itemized invoices 

and manifests for federally regulated types and quantities of hazardous 

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

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

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

five (5) years from the date of the records or the date of the entries 

appearing in the records, unless the department in writing, authorized 

their destruction or disposal at an earlier date. For purposes of this act, at 

any time during usual business hours, the department or duly authorized 

agents or employees, may enter any place of business of the owner or 

operator of a hazardous waste facility or site where hazardous wastes are 

disposed and inspect the premises, the records required to be kept under 

this chapter, and the hazardous wastes or other chemicals contained 

therein, to determine whether or not all the provisions of sections 39-4427 

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

information obtained by the department under the provisions of this section 

shall be treated in the same manner as such information obtained under 

section 39-4411, Idaho Code. If the department, or any of its authorized 

agents or employees is unreasonably denied free access or is unreasonably 

hindered or interfered with in making the examination' of a hazardous 

waste facility or site, that hindrance or interference shall constitute 

grounds for suspension or revocation of the facility or site's permit by the 

director of the department of health and welfare under subsection (b) of 

section 39-4413, Idaho Code. [I.C., § 39-4429, as added by 1984, ch. 205, 

§ 7, p. 502.] 

39-4430. Additions and penalties. - The additions, penalties, and 

requirements provided by the Idaho income tax act, sections 63-3046, 

63-3075, 63-3076 and 63-3077, Idaho Code, as they now exist or as they 

may be subsequently amended, shall apply in the same manner and to the 

same extent to this act as to the Idaho income tax act and shall cover such 

additions, penalties and requirements and shall, for this purpose, be 

described and be for acts, omissions, delinquencies, and requirements 

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

.1988 

CUMULATIVE
 

POCKET SUPPLEMENT
 

IDAHO CODE 

Compiled Under the Supervision of the 

Idaho Code Commission 

PHILLIP M. BARBER
 

WILLIS E. SULLIVAN JESS B. HAWLEY, JR.
 

COMMISSIONERS
 

VOLUME 7A
 

For your convenience in reporting any errors in these supplements or suggested improvements or additions you will find 

postpaid cards in the back of the 1988 Replacement Index 

Volumes. 

Place this supplement in the pocket of the corresponding volume 

of the set 

COPYRIGHT © 1986, 1987, 1988
 

All Rights Reserved
 

By
 

THE MICHIE CaMPANY
 

Law Publishers 

CHARLOTI'ESVIu.E, VIRGINIA 

I 
39-4403 HEALTH AND SAFETY 78 

(6) "Generator" means any person; who by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the 

creation of a hazardous waste. 

(7) "Hazardous waste" means a waste or combination of wastes of a solid, 

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

concentration or characteristics (physical, chemical or biological) may: 

(a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or 

(b) Pose a substantial threat to human health or to the environment if 

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

but are not limited to, materials which are toxic, corrosive, ignitible, or 

reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows 

or industrial discharges which are point sources subject to national pollution discharge elimination system permits under the Federal Water Pollution Control Act, as amended, 33 U.S.C., Section 1251 et seq., or source, 

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

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

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

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

(9) "Hazardous waste facility or site" means any property, structure, or 

ancillary equipment intended or used for the transportation, treatment, 

storage or disposal of hazardous wastes. 

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

(11) "Manifest" means a form used for identifying the quantity, composition, origin, routing, waste identification coders), and destination of hazardous waste during any transportation from the point of generation to the 

point of treatment, storage or disposal. 

(12) "Person" means any individual, association, partnership, firm, joint 

stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency, or instrumentality, or any other legal entity which is recognized by law as the subject of 

rights and duties. 

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

1976 as amended in 1978, 1980 and 1984. 

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

(a) Any hazardous waste which contains any of the following substances, 

in the following concentrations, as determined without considering any 

dilution 'which may occur, unless the dilution is a normal part of the 

manufacturing process: 

(i) Liquid hazardous wastes containing free cyanides or sulfides at 

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

million. 

(ii) Liquid hazardous wastes containing any of the following metals or 

elements, or compounds of these metals or elements, at concentrations 

greater than, or equal to, any of the' following: 
39-4404 HEALTH AND SAFETY 80 

39-4404. Consistency with federal law. - The legislature intends 

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

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

the federal government. 

The legislature finds that the RCRA, as amended, 42 U.S.C., Section 

6901 et seq., and regulations adopted pursuant thereto, establish complex 

and detailed provisions for regulation of those who generate, transport, 

treat, store, and dispose of hazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of 

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

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

the existence of duplicative, overlapping or conflicting state and federal 

regulatory systems. 

Therefore, the board is directed to promulgate rules and regulations 

which are in substance consistent with RCRA and the federal regulations 

adopted by the administrator of the United States environmental protection agency to implement RCRA. Until such time as the board has promulgated rules and regulations concerning mining and mineral wastes and 

materials under study by the administrator, those wastes and materials 

shall not be considered or defined as hazardous wastes under this chapter; 

provided, however, that spent potliners from primary aluminum reduction, 

or environmental protection agency hazardous waste number K088, shall 

be defined as hazardous waste. Farmers and ranchers who treat, store, or 

.dispose of waste pesticides from their operations on lands owned or controlled by them shall not be required by board rules or regulations to do 

anything more than follow the instructions on the pesticide label and triple 

rinse empty containers in accordance with the RCRA regulations of the 

environmental protection agency. The board may not promulgate any rule 

or regulation that would impose conditions or requirements more stringent 

or broader in scope than RCRA and the RCRA regulations of the environmental protection agency. The board may, however, promulgate procedural 

rules and regulations and rules and regulations specifically authorized by 

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

regulations are required by RCRA or the regulations of the environmental 

protection agency; provided that those rules and regulations shall not conflict with this section, other sections of this chapter, RCRA, or the rules and 

regulations of the environmental protection agency. Any rule or regulation 

promulgated by the board shall be valid until it is repealed or modified 

through the administrative process of section 67-5201, Idaho Code, et seq. 

[I.C., § 39-4404, as added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 182, 

§ I, p. 479; am. 1988, ch. 6, § I, p. 6; am. 1988, ch. 259, § I, p. 498.] 

Compiler's notes. This section was of the third paragraph. inserted "RCRA and 

amended by two 1988 acts which appear to be the"; and in the sixth sentence of the third 

compatible and have been compiled together. paragraph, inserted "RCRA and." 

The amendment by ch. 6 deleted the second Section 2 of S.L. 1986, ch. 182. declared an 

and third sentences of the third paragraph as emergency. Approved April 1, 1986. 

they appear in the bound volume. The Section 2 of S.L. 1988, ch. 259 is compiled 

amendment by ch. 259. in the first sentence as § 39-4409. 
39-4409 HEALTH AND SAFETY 82 

RCRA, unless the owner or operator of the landfill demonstrates to the 

director that: 

(a) The only reasonable alternative is placement in a landfill or unlined 

surface impoundment which contains or may contain hazardous waste; 

and 

(b) Placement in the owner or operator's landfill will not present a risk of 

contamination of any existing or potential underground source of'drinking water. 

(3) Waste or used oil or other material which is contaminated or mixed 

with any hazardous waste, other than wastes identified solely on the basis 

of ignitibility, shall not be used for dust suppression or road treatment. 

(4) The board shall have authority to prohibit: 

(a) Land disposal of any hazardous waste; and 

, (b) Storage of any hazardous waste prohibited from land disposal, unless 

such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, 

" treatment or disposal. [I.C., § 39-4408, as added by 1983, ch. 154, § 1, p. 

416; am. 1986, ch. 148, § 3, p.415.] 

Compiler's notes, Section 3005(c) or Section 2 of S.L. 1986, ch, 148 is compiled 

RCRA referred to in this section is compiled as § 39-4405. 

as 42 U.S.C., § 6925(c). 

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

storage, or disposal facilities. - (1) No person shall construct, operate, 

or modify a hazardous waste treatment, storage, or disposal facility or site 

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

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

Permits may contain such conditions necessary to protect human health 

and environment. The board may exempt classes or categories of hazardous 

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

if the exemption is in the public interest and consistent with RCRA requirements. The fact that a class or category of such facilities is not' required to obtain a federal permit shall be persuasive evidence that an 

exemption is in the public interest. • 

(2) Interim status granted by RCRA or a permit issued by the United 

States environmental protection agency prior to the date that the state 

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

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

permit until the department issues a new state permit. The board may 

adopt such rules and regulations as necessary to: 

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

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

replacement of existing units and lateral expansions of existing interim 

status facilities to comply with all regulations which apply to new facilities; and 

(c) Provide for the termination of interim status. 
39-4409 HEALTH AND SAFETY 84 

the department provides public notice and an opportunity for public comment. . 

(8) (a) The director of the department may issue a research, development and demonstration permit for any hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated. Any such permit shall include such terms 

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

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

operation of the facility for not longer than one (1) year (unless renewed as provided below); and. 

2. Provide for the receipt and treatment by the facility of only those 

types and quantities of hazardous waste which the director deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and 

3. Include such requirements as the director deems necessary to protect human health and the environment (including, but not limited to, 

requirements regarding monitoring, operation, insurance or bonding, 

financial responsibility, closure, and remedial action); and 

4. Include such requirements as the director deems necessary regarding testing and providing of information to the director with respect to 

the operation of the facility. . 

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

subsection in establishing the conditions of each permit without separate 

establishment of regulations implementing such criteria. 

(c) For the purpose of expediting review and issuance of permits under 

this subsection, the director may, consistent with the protection of 

human health and the environment, modify or waive permit application 

and permit issuance requirements established in the general permit regulations except that there may be no modification or waiver of regulations regarding financial responsibility (including. insurancefor of applicable public participation procedures. 

(d) The director may renew a research, development and demonstration 

permit which has been issued pursuant to this subsection. The renewal 

term shall be no longer than one (1) year. A permit shall not be renewed 

more than three (3) times. [I.e., § 39-4409, as added by 1983, ch. 154, 

§ 1, p. 416; am. 1986, ch. 148, § 4,p. 415; am. 1987,ch. 102, § 1,p. 204; 

am. 1988, ch. 7, § 1, p. 7; am. 1988, ch. 259, § 2, p. 498.] 

Compiler's notes. This section was The words in parentheses so appeared in 

amended by two 1988 acts which appear to be the law as enacted. 

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

The amendment by ch. 7, in the first sentence as § 39-4411. 

of subsection (5), inserted "issued"; and added Sections 1 and 3 of S.L. 1988, ch. 259 are subdivision (8)(d). The amendment by ch. compiled as §§ 39-4404 and 39-4413, respec­ 259, in subdivision (2)(b), inserted "existing tively. interim status surface impoundments"; and Sec. to sec. ref. This section is referred to in the first sentence of subsection (5), in­ in § 39-4413. serted "issued." 
39-4410 HEALTH AND SAFETY 86 

transporter has obtained a special permit from the Idaho transportation 

department as provided in section 49-2504, Idaho Code. If an improperly 

documented shipment of hazardous waste arrives at a permitted commercial hazardous waste facility or site, the owner or operator of the facility or 

site shall immediately notify the Idaho transportation department and the 

Idaho department of law enforcement. [l.C., § 39-4410, as added by 1983, 

ch. 154, § l,p.416;8ln.1984,ch.205,§ 2,p. 502; am. 1986,ch.231,§ l,p. 

627.] 

Compiler's notes. For this section as ef­ Transportation Department shall be authofective January I, 1989 see the following sec­ rized to permit any person renewing or purtion also numbered § 39-4410. chasing a vehicle registration on and after 

Section 2 of S.L. 1986, ch, 231, is compiled July I, 1986, to acquire a vehicle registration as § 39-4417B. endorsement prior to January I, 1987, and 

Section 5 of S.L. 1986, ch. 231, read: "An any receipts therefrom shall be placed in the 

emergency existing therefor, which emer­ Hazardous MateriallHazardous Waste Transgency is hereby declared to exist, Section portation Enforcement Account which is cre­ 49-2512, Idaho Code, which is enacted by Sec­ ated in section 49-2507, Idaho Code, which is tion 4 of this act shall be in full force and enacted by Section 4, of this act and Section effect on and after this act's passage and ap­ 49-2507, Idaho Code, which is enacted by Sec­ proval. The remaining provisions of this act tion 4 of this act shall be in full force and shall be in full force and effect on and after effect on and after July I, 1986. Approved January I, 1987; provided, however, that the 

April 3, 1986." Idaho Transportation Board and Idaho 

39-4410. Transportation of hazardous waste [Effective January I, 

1989]. -H) The board shall promulgate hazardous waste transporta . n 

rules and re lations to control the intrastate and interstate tr ortation of federal regulated types and quantities of hazardou aste. The 

rules and regulat ns shall be consistent with the rules d regulations 

issued by the Unite tates department of transpo on and the United 

States environmental tection agency. The and regulations shall 

also be consistent with th les and regula' ns of the Idaho public utilities commission unless such nsistenc ould impair the primacy or the 

effectiveness of the state's haz 0 aste management program. In that 

case the board shall confer wi commission and endeavor to develop 

mutually acceptable trans tion es and regulations. If mutually acceptable rules and re ions cannot be eveloped, the board shall promulgate transportatio les and regulations at minimize conflict with the 

commission's es and regulations while as ring the primary authority 

and effec . eness of the state's hazardous wa management program. 

Rule nd regulations so promulgated by the boar hall prevail over con­

. ing rules and regulations of the commission. 

,_,_",e. hazardous waste transportation rules and regulations sh.~a;;ll.......-r'J 

to all transpo federally regulated types and 0 azardous 

waste generated either e 0 ers. These rules and regulations shall a I ovement 0 lated quantity of hazardous 

UTJ:I~~f.i\or from a hazardous waste facility or . , 

(3) The hazardous waste transportation rules and regulations shall provide for but not be limited to: 

(a) Standards for the containerization and labeling of hazardous wastes; 
39-4411 HEALTH AND SAFETY 88 

(f) The provision of relevant information to the department. 

(2) Sixty (60) days after promulgation of the criteria and lists specified 

under section 39-4407, Idaho Code, and the rules and regulations required 

under section 39-4405, Idaho Code, and subsection (1) of this section, the 

generation, transportation, treatment, storage, or disposal of a hazardous 

waste in this state by any person without reporting such activity to the 

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

of this section shall be unlawful. 

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

other representatives of the department, under any provisions of this chapter, shall be available to the public, unless the director certifies such information must be kept confidential. The director may make such certification 

upon a showing, to the satisfaction of the director, that the information, or 

parts thereof, if made public, would divulge methods, processes, or activities constituting trade secrets. Nothing in this subsection shall be construed as limiting the disclosure of information by the department to any 

officer, employee, or authorized representative of the state or the United 

States, as necessary to carry out the provisions of this chapter or the provisions of RCRA. The provisions of this section shall not limit the department's authority to release confidential information during an emergency 

involving hazardous waste, if the director determines that release of the 

information is necessary to safeguard the public interest. 

(4) Each generator shall, at the discretion of the director, no later than 

thirty (30) days after the end of each calendar quarter submit a written 

report to the department including the.following information: 

(a) The types and quantities of hazardous wastes generated; 

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

disposal by landfilling or other means of disposal; 

(c) The types and quantities of such wastes remaining in storage at the 

end of the reporting period; 

(d) Whether such wastes are destined for disposal or treatment in this 

state or whether such wastes are destined for disposal or treatment outside this state. .. 

(5) The operator of each hazardous waste disposal facility or site in the 

state shall, no later than thirty (30) days after the end of each calendar 

quarter, submit a written report to the department providing information 

on the types and quantities of wastes received which were generated in 

Idaho, and information on the types and quantities of wastes received 

which were generated in other states. 

(6) Prior to December 31 of each year the department shall submit a 

report to the governor and the legislature detailing the types and quantities of hazardous wastes generated in this state, the types and quantities of 

such wastes shipped for treatment and disposal by landfilling or other 

means of disposal, the types and quantities of such wastes remaining in 

storage at the end of the most recent reporting period and the types and 

quantities of hazardous waste generated outside this state and shipped into 

this state for storage or disposal. [I.C.,§ 39-4411, as added by 1983, ch. 154, 

§ 1, p. 416; am. 1984, ch. 258, § 1, p. 618; am. 1986, ch. 148, § 5, p. 415.] 
i 

39-4413 HEALTH AND SAFETY 90 

f any hazardous waste facility or site pursuant to the grounds provided 

subsection (6) of section 39-4409, Idaho Code. 

violation that is shown to have occurred as the result of an unforeseea e act of God despite a permitted party's reasonable efforts to comply all applicable legal requirements shall not be grounds for a 

suspens n or revocation. 

(b) Notic of Hearing. The director may commence a permit suspension 

or revocati action by giving a permitted party a Written notice of intent 

to suspend 0 revoke. The notice shall inform the permitted party of facts 

or conduct w .ch warrant suspension or revocation of the permit. The 

notice, hearing, nd record requirements for contested cases contained in 

the Idaho admini trative procedure act, chapter 52, title 67, Idaho Code, 

and subsection (A )(c) of this section shall apply to proceedings initiated under this sub ction. Revocation or suspension of a permit shall 

become final fifteen 5) days after delivery of the notice of intent to 

revoke or suspend unl s the permitted party requests a hearing. 

(c) Administrative Hear g Provisions. 

(i) Upon a timely reque by a permit holder for a hearing to review 

the director's action under ubsection (A)(2)(b)of this section, the director shall promptly conduct hearing open to the public. The contested 

case provisions of the Idaho a inistrative procedure act shall apply to 

all hearings conducted under his subsection. 

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

court in and for Ada county or an other appropriate district court the 

issuance of an order in the nature 0 a subpoena compelling the attendance and testimony of witnesses an the production before the director of papers, books, drawings, docume ts, test results, and other evidence relevant to a permit suspension revocation investigation or 

adjudication. 

(iii) After the hearing, the director shall i ue a written opinion setting forth findings of fact, conclusions of la and an order. An aggrieved person subject to the director's order. y seek its review as a 

final order in a district court as provided by the daho administrative 

procedure act. District court review of the direc 's decision shall be 

limited to the record developed before the directo . 

(3) CIVIL ENFORCEMENT ACTION. The attorney neral may commence and prosecute in district court a civil enforceme t action. Civil 

enforcement actions shall be commenced and prosecuted the district 

court in and for the county in which the alleged violation 0 urred, and 

may be brought against any person who is alleged to have VI lated any 

provision of this chapter or any rule, regulation, permit, con ition, requirement, consent order, or order which has become effective p rsuant 

to this chapter. Such action may be brought to compel complianc with 

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

promulgated hereunder, and for any relief or remedies authorized in t is 

chapter. The director shall not be required to initiate or prosecute a 

administrative action before the attorney general may commence and 
39-4423 HEALTH AND SAFETY 92

damages to the people and environment of the state of Idaho caused by 

such emergencies or spills. 

(d) Taking removal or remedial action relating to hazardous wastes 

which the department deems necessary to prevent, minimize or mitigate 

damage to the public health and welfare or the environment. [I.C., 

§ 39-4417B, as added by 1984, ch. 205, § 3, p. 502; am. 1986, ch. 231, § 2, 

p. 627.] 

Compiler's notes, Sections 1 and 3 of S.L. 

1986, ch. 231 are compiled as §§ 39-4410 and 

39-4426, respectively. 

39-4423. Disposal ofrestricted hazardous wastes prohibited. - (1) 

Notwithstanding any other provision oflaw to the contrary, no person shall 

discharge, deposit, inject, dump, spill, leak, or place any restricted hazardous waste, as defined in section 39-4403, Idaho Code, into or on any land or 

water at a commercial hazardous waste facility or site. 

(2) The department may issue a variance from the requirements of subsection (1) of this section, if, in the judgment of the director, application of 

the" requirements would cause undue hardship and the granting of the 

variance would not be harmful to the public interest or inconsistent with 

RCRA requirements. In issuing the variance, the director shall take into 

account: 

(a) The long-term uncertainties associated with land disposal; 

(b) The goal of managing hazardous wastes in an appropriate manner in 

the first instance; and 

(c) The persistence, toxicity, mobility, and propensity to bioaccumulate 

of such hazardous wastes and their hazardous constituents. 

(3) (a) The board shall promulgate rules and regulations specifying 

those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of 

migration of hazardous constituents from the waste SQ that short-term 

and long-term threats to human health and the environment are minimized. " 

(b) Ifsuch restricted hazardous waste has been treated to the level or by 

a method specified in regulations promulgated under this subsection, 

such waste or residue thereof shall not be subject to the prohibition in 

subsection (1) of this section and may be disposed of in a land disposal 

facility which meets the requirements of this chapter. [I.C., § 39-4423, as 

added by 1986, ch. 324, § 2, p. 794.] 

Compiler's notes, Section 1 of S.L. 1986, 

ch. 324 is compiled as § 39-4403. 

39=2M~_A~pointment of health inspectors [Effective until January I, 1989]. - artment of health and welfare shall assign a 

sufficient number of employees a . ment to inspect hazardous waste 

facilities or sites permitted under section 39- , Code, and located 

in Idaho where disposal of hazardous waste occurs for the pu sur93 

ing t 

rece: 

corm 

(2' 

subs 

depa 

regu 

Idah 

49, I 

port. 

men 

secti 

ploy' 

utili 

the 

(3 

(1) 0 

viola 

Code 

rule: 

secti 

Al 

and 

for i 

title 

in tl 

198E 

Co: 

fectiv 

tion ; 

39 

198£ 

nurn 

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whe: 

prot, 

and 

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subs 

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Ida}: 

49,1 

port' 

men 

sect; 
ment's employees as agents of the Idaho transportation department and the 

public utilities commission shall be remitted to the state treasurer for deposit in the proper account as provided by law. 

(3) All employees of the department designated pursuant to subsection 

(1) of this section shall alert proper authorities or peace officers regarding 

violations pursuant to this chapter, violations pursuant to title 61, Idaho 

Code, and violations pursuant to title 49; Idaho Code, and violations to any 

rules and regulations issued pursuant to any of the aforementioned code 

sections. 

All actions brought for violations of the provisions of this chapter or rules 

and regulations promulgated pursuant thereto shall be brought as provided 

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

title 61, Idaho Code, or of title 49, Idaho Code, shall be brought as provided 

in those titles. [I.C., § 39-4426, as added by 1984, ch. 205, § 4, p. 502; am. 

1986, ch. 231, § 3, p. 627; am. 1988, ch. 265, § 569, p. 549.) 

94 

SECTION. 

39-4506. Revocation. 

39·4507. Executio of directive. 

39·4508. Imm ity, 

39·4509. Ge ral provisions. 

Sections 568 and 570 of S.L. 1988, ch. 265 

are compiled as §§ 39-4410 and 40-701. 

Section 586 of S.L. 1987, ch. 265 provided 

that the act should become effective on and 

after January 1, 1989. 

HEALTH AND SAFETY 

Statement of policy. 

Definitions. 

iving will. 

Du ble power of attorney for 

h th care. 

39-4502 

Compiler's notes. For the version of this 

section as effective prior to January 1, 1989 

see the preceding section also numbered 

§ 39-4426. 

The bracketed reference "49-2202" in 

subection (2) was inserted by the compiler. 

CHAPTER 45 

NATURAL DEATH ACT 

39-4502. Statem t of policy. - T legislature finds that adult persons have the fundame I right to ntrol the decisions relating to the 

rendering of their medical c e, in ding the decision to have life sustaining procedures withheld or WI drawn. 

The legislature further fin tha odern medical technology has made 

possible the artificial pro ngation 0 uman life beyond natural limits. 

The legislature furt finds that patie are sometimes unable to express their desire to ithhold or withdraw su artificial life prolongation 

procedures whic rovide nothing medically nece ary or beneficial to the 

patient becau of the patient's inability to comrnufti ate with the physician. 

In rec ition of the dignity and privacy which patients ve a right to 

expec , the legislature hereby declares that the laws of this ate shall 

re gnize the right of a competent person to have his wishes for dical 

eatment and for the withdrawal of artificial life sustaining proce es 

carried out even though that person is no longer able to communicate wit 

the physician.