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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 

R. DANIEL BOWEN
 

THOMAS A. MILLER RICHARD F. GOODSON
 

COMMISSIONERS
 

MAX M. SHEILS, JR. 

EXECUTIVE SECRETARY 

TITLES 39 (44-83),40 

4~MICHIE

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PUBLISHER'S NOTE 

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laws have been amended or repealed and many new laws have been enacted. 

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(44-83), 40 has made it necessary to revise this volume. Accordingly, 

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direction of the Idaho Code Commission. 

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American Law Reports, Federal Series, through Volume 173 

Opinions of Attorney General, 2001-3 

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

throughout the Idaho Code. 

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III • 
•	 TITLE 39 

HEALTH AND SAFETY 

CHAPI'EIl.	 CHAPTER. 

44.	 HAzARoous WA!'rrE MANAGEMENT, §§ 39­ 62. PCB WA!'rrE DlSPOSAL,§§ 39-6201 - 39­

4401 - 39-4432. 6216. 

45.	 NATURAL DEATH ACT, §§ 39-4501 - 39­ 63. DOMESTIC VIOLENCE CRIME PilEVENTION, 

4509. §§ 39-6301- 39-6317. 

46. IDAHO DEVELOPMENTAL DlSABll.ITIES SERVICES 64. CLEAN LAKEs ACT,§§ 39-6401 - 39-6413. 

. AND	 FACll.ITIES ACT, §§ 39-4601 - 39­ 65. WA!'rrE TiRE DISPOSAL, §§ 39-6501 - 39­

4608. ' 6507. 

47. REsPITE CARE SERVICES. [REPEALED.) 66. BIG PAYE'lTE LAKE WATER QUALITY ACT, 

A47.	 PERsoNAL CARE SERVICES. [AMENDED AND §§ 39-6601 - 39-6612. 

REDESIGNATED.) 67 - 69. [RESERVED.) 

. 48. IMMUNlZATION, §§ 39-4801 - 39-4804. 70.	 SALE AND DISPOSAL OF BATTERIES, §§ 39­

7001 - 39-7004. 49. IDAHO HEALTH PuNNING ACT, §§ 39-4901 

71. HAzARoous SUBSTANCE EMERGENCY RESPONSE - 39-4904. 

ACT, §§ 39-7101 - 39-7115. [50)	 49. EQUAL OPPORTUNITY FOR DISPLACED 

72. IDAHO LAND REMEDIATION ACT, §§ 39-7201 HOMEMAKER ACT, §§ [39-5001) - 39­ - 39-7210. 5009. 73. [RESERVED.) 51. FAMll.Y SUPPORT AND IN-HOME Assrsrascs, 74. IDAHO SOLID WA!'rrE FACll.ITIES ACT, §§ 39­ §§ 39-5100 - 39-5106. 7401 - 39-7421. 52. DOMESTIC VIOLENCE PRoJECT GRANTS, §§ 39­ 75. ADoPTION AND MEDICAL AssrsrANCE, §§ 39­ 5201 - 39-5213. 7501 - 39-7505. 53. ADULT ABUSE, NEGLECT AND EXPLOITATION 76. PuBLIC DRINKING WATER SYSTEM LoANS, ACT, §§ 39-5301 - 39-5312. §§ 39-7601 - 39-7606. 54. ARTIFICIAL INSEMINATION, §§ 39-5401- 39­ 77. VOLUNTEER HEALTH CARE PRoVIDER IMMU­ 5408. NITY, §§ 39-7701 - 39-7705. 55. CLEAN INDOOR Am, §§ 39-5501- 39-5510. 78. '!bBACCO MASTER SETIU:MENT AGREEMENT, 

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56. PERSONAL CARE SERVICES, §§ 39-5601 ­
 §§ 39-7801 - 39-7805. 

39-5609. 79. LocAL OPTION SWINE FACll.ITIES SITING ACT, 57. PREVENTION OF MINORS' ACCESS TO '!bBACCO, §§ 39-7901 - 39-7916. 

§§ 39-5701 - 39-5713. 80. UNIFORM PuBLIC ScHOOL BUILDING SAFETY, 

58.	 l!AzARoous WA!'rrE FACll.ITY SITING, §§ 39­ §§ 39-8001- 39-8012. 

5801 - 39-5820. 81. BABIN ENVIRONMENTAL IMPROVEMENT ACT, 

59.	 IDAHO RURAL HEALTH CARE ACCESS PROGRAM, §§ 39-8101 - 39-8115. 

§§ 39-5901 - 39-5913. [82) 81. IDAHO SAFE HAVEN ACT,' §§ [39­

60.	 CHll.mum's TRUST FuND,§§ 39-6001 - 39­ 8201) - [39-8207). 

6008. [83) 81. TRAUMA CARE, §§ [39-83011, [39­

61. [RESERVED.)	 8302). . 

CHAPTER 44 

HAZARDOUS WASTE MANAGEMENT 

SECTION.	 SECTION•. 

39-4401. Short title.	 waste treatment, storage, or 

39-4402. Legislative findings and purposes. disposal facilities. 

39-4410. Transportation of hazardous waste. 39-4403. Definitions. 

39-4411. Records - Reporting - Monitor­ 39-4404. Consistency with federal law. ing. 39-4405. Rules in general. 39-4412. Inspections - Right of entry. 39-4406. General powers and duties of direc­ 39-4413. Enforcement procedures. tor. 39-4414. Remedies. 

39-4407. Identification of hazardous wastes. 39-4415. Violations constituting misdemean39-4408. Unauthorized treatment, storage, ors. release, use or disposal of haz­ 39-4416. Citizen suits. 

ardous waste prohibited. 39-4417. Hazardous waste emergency ac39-4409. Permit requirements for hazardous count. 

1 

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39·4401 HEALTH AND SAFETY 2 

SECTION. SECTION. 

39-4417A. [Reserved.) 39-4427C. Treatment, storage or disposal fa39-44178. [Repealed.) cility fee.
 

39-4418. Local government notice. 39-4427D. Hazardous waste fees - Duplica­


39-4419. Interstate cooperation. tion.
 

39-4420. Employment security.
 39-4428. Collection of commercial disposal 39-4421. Good samaritan protection. fees - Returns. 

39-4422. Severability. 39-4429. Books and records to be preserved 39-4423. Disposal of restricted hazardous - Entry and inspection by de­ wastes prohibited. partment of environmental 39-4424. Disposal of manifested waste. quality. 39·4425. [Reserved.) 39-4430. Additions and penalties. 39-4426. Appointment of inspectors. 

39-4427. Commercial disposal fees. 39-4431. Collection and enforcement. 

39-4427A. (Amended and Redesignated.] 39-4432. Distribution of commercial disposal 

39·4427B - 39-4427D. [Repealed.) fee revenues. 

39-4401. Short title. - This act may be known and cited as the 

"Hazardous Waste Management Act of 1983." [I.C., § 39-4401, as added by 

1983, ch. 154, § 1, p. 416.] 

Compiler's notes. The words "this act" Collateral References. Amount and charrefer to S.L. 1983, ch, 154, § 1 which is acteristics of wastes as equitable factors in 

compiled as §§ 39-4401 through 39-4422. allocation of response costs pursuant to 

Sec. to sec. ref. This chapter is referred to § 113(00) of Comprehensive Environmental 

in §§ 9·342A, 39-5804, 39-5809, 39-5819, 39­ Response, Compensation, and Liability Act 

7403, 49-2206, 63-3029D and 63-602CC. (CERCLA), 42 U.S.C.A. § 9613(£)(1): multiple Cited in: Idaho v, Hanna Mining Co., 699' waste streams. 162 A.L.R. Fed. 371. c 

F. Supp. 827 (D. Idaho 1987). 

39-4402. Legislative findings and purposes. - (1) The legislature 

of the State of Idaho finds: 

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

and the abatement of air and water pollution have resulted in ever­


increasing quantities of hazardous waste;
 

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


ened when hazardous wastes are not managed in an environmentally
 

sound manner; .
 

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

health, environmental and aesthetic impacts resulting from current
 

hazardous waste management and disposal practices are generally avail­


able; and
 

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

become a matter of great statewide concern.
 

(2) Therefore, it is hereby declared that the purposes of this act are: 

(a) To protect the public health and safety, the health ofliving organisms,
 

and the environment from the effects of the improper, inadequate, or
 

unsourid management of hazardous waste;
 

(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 added by 1983, ch. 154, § 1, p. 416.]
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3 HAZARDOUS WASTE MANAGEMENT 39-4403 

Compiler's notes. For words "this act," see wastes into sewer systems. 47 A.L.R.3d 1224. 

Compiler's notes, § 39-440l. Applicability of zoning regulations to waste 

Collateral References. Validity and con­ disposal facilities of state or local governmenstruction of statutes, ordinances, or regula­ tal entities. 59 A.L.R.3d 1244. 

tions controlling discharge of industrial 

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

(1) "Board" means the Idaho board of environmental quality. 

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

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

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

generators other than the owner and operator of the facility. 

(3) "Department" means the Idaho department of environmental quality. 

(4) "Director" means the director of the Idaho department of environmental quality 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) "Gate ton" means the weight, in tons (2,000 pounds/ton), of waste 

material received at a facility. This weight does not include any subsequent 

changes to the weight resulting from the management of the waste by the 

facility. 

(7) "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. 

(8) "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 byproduct material as defined by the atomic 

energy act of 1954, as amended, 42 U.S.C., section 2011 et seq. 

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

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

• 

(10) "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. 
39-4403 HEALTH AND SAFETY 4 c 

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

(12) "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. 

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

generation is required to be manifested for transportation in a manner 

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

manifest requirements designed to assure proper treatment, storage and 

disposal of such waste. . 

(14) "PCB waste" means any waste or waste item which is not included in 

the definition of "hazardous waste" and which is contaminated with 

polychlorinated biphenyls. 

(15) "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. 

(16) "RCRA"means the resource conservation and recovery act of 1976 as 

amended from time to time. 

(I7) "Restricted hazardous waste" means a waste or combination of 

wastes regulated as land disposal restricted pursuant to federal statutes 

and regulations, including 40 CFR part 268. Restricted hazardous waste 

also includes byproduct, source, special nuclear materials or devices or o equipment utilizing such materials regulated under the federal atomic 

energy act of 1954, as amended. Restricted hazardous waste shall not 

include radiologically contaminated waste materials from "Formerly Utilized Sites Remedial Action Program (FUSRAP)" sites administered by the 

United States army corps of engineers and being disposed of pursuant to a 

contract in existence on July 1, 2001, and as may be renewed thereafter. 

(I8) "Storage" means the containment of hazardous wastes, on a temporary basis or for a period of years, in such a manner as not to constitute 

disposal of such hazardous wastes. 

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

from a hazardous waste facility or site. 

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

to or from a hazardous waste facility or site. 

(21) "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. 

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

material for which no reasonable use or reuse is intended or which is c 
• 5 HAZARDOUS WASTE I\-tANAGEMENT 39-4404 

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

416;arn. 1984,ch.205,§ l,p.502;aDl. 1986,ch. 148, § l,p.415;aDl. 1986, 

ch. 324, § 1, p. 794; am 1989, ch. 253, §' 1, p. 626; am. 1993, ch. 291, § 1, p. 

1082; am. 1994, ch. 419, § 1, p. 415; am. 2001, ch. 103, § 45, p. 253; am, 

2001, ch. 297, § 3, p. 1072.] 

Compiler's notes. This section was 

amended by two 2001 acts which appear to be 

compatible and have been compiled together. 

The amendment by ch. 103. § 45, substituted "environmental quality" for "health and 

welfare" throughout the section; in subsection 

(7}(bl, substituted "byproduct" for "by product"; and made stylistic changes. 

The amendment by ch. 297, § 3, in subsection (7). added the second sentence. 

The Resource Conservation and Recovery 

Act of 1976, referred to in subdivision (5) 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. 

Section 2 of S.L. 1986, ch. 148 is compiled 

as § 39-4405. 

Section 2 of S.L. 1986, ch. 324 is compiled 

as § ;;9-4423. 

Section 2 of S.L. 1989, ch. 253 is compiled 

as § 39-4424. 

Section 2 of S.L. 1994, ch. 419 is compiled 

as § 39-4427. 

Sections 44 and 46 of S.L. 2001, ch. 103 are 

compiled as §§ 39-3638 and 39-4426, respectively. 

Sections 2 and 4 of S.L. 2001, ch. 297, are 

compiled as §§ 39-4427 and 39-4405, respectively. 

Cross ref. Inspection of hazardous waste 

carriers, penalties §§ 67-2917,67-2918. 

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

in §§ 18-3905 and 39-4423. 

• 

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

that the state ofldaho 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 federal regulations adopted pursuant thereto, establish complex 

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

treat, store, and dispose of hazardous wastes. The legislature cannot 

conveniently or advantageously set forth in this chapter all the requirements of all of the regulations which have been or will be established under 

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

avoid the existence of duplicative, overlapping or conflicting state and 

federal regulatory systems. 

• 

Therefore, the board is directed to promulgate rules which are consistent 

with RCRA and the federal regulations adopted by the administrator of the 

United States environmental protection agency to implement RCRA. 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 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 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 rules specifically authorized by this chapter or other 

state statutes without showing that those rules are required by RCRA or the 

regulations of the environmental protection agency; provided that those 

rules shall not conflict with this section, other sections of this chapter, 
39-4405 HEALTH AND SAFETY 6 

RCRA, or the regulations of the environmental protection agency. Any rule 

promulgated by the board shall be valid until it is repealed or modified 

through the administrative process of chapter 52, title 67, Idaho Code. [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,§ l,p.498; am. 1993,ch. 

216, § 27, p. 587; am. 1993, ch. 291, § 2, p. 1082.] 

Compiler's notes. This section was 

amended by two 1993 acts - ch. 216, § 27 

and ch. 291, § 2 both effective July 1, 1993­

which do not conflict and have been compiled 

together. 

The amendment by ch. 216, § 27 in the first 

sentence of the seco~d paragraph added "federal" following "6901 et seq., and"; in the third 

paragraph in the present first through the 

third sentences deleted "and regulations" following "rules" wherever they appeared; in the 

present fourth sentence deleted "and regulations" following "rules" in the first four places 

it appears and deleted "rules and" preceding 

"regulations of the environmental protection 

agency."; and in the present fifth sentence 

deleted "or regulation" following "Any rule" 

and substituted "chapter 52, title 67, Idaho 

Code" for "section 67-5201, Idaho Code, et 

seq." 

The amendment by ch. 291, § 2 in the first 

sentence of the third paragraph deleted "in 

substance" preceding "consistent with RCRA" 

and deleted a former second sentence. 

Section 2 of S.L. 1988, ch. 259 is compiled 

as § 39-4409. 

Section 26 of S.L. 1993, ch. 216 is compiled 

as § 39-4120, and section 28 was repealed. 

Section 3 of S.L. 1993, ch. 291 is compiled 

as § 39-4406. 

Section 2 of S.L. 1986, ch. 182, declared an 

emergency. Approved April 1, 1986. 

39·4405. Rules in general. - Pursuant to the procedures established 

by the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, 

management 

the board shall 

of the 

adopt 

generation, 

such rules 

collection, 

as are 

transportation, 

necessary and 

treatment, 

feasible for 

storthe o

age, and disposal of hazardous wastes within the state. The board shall also 

adopt such rules as necessary to regulate persons who produce, burn, 

distribute, and market fuel containing hazardous waste. The rules promulgated by the board shall be a part of this code and shall have the force and 

effect of law. Such rules shall include, but not be limited to: 

(1) Criteria for the determination of whether any waste or combination of 

wastes is hazardous for the purposes of this chapter; 

(2) Rules for those who generate, transport, treat, store, or dispose of 

hazardous wastes; . 

(3) Rules, consistent with those issued by the United States environmental protection agency and the United States department of transportation, 

for containerization, labeling and manifesting of hazardous wastes; 

(4) Rules 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 establishing standards and procedures for the training of 

personnel at generation sites and at hazardous waste facilities and sites; 

(8) Release detection, prevention and correction rules applicable to all 

owners and operators of underground storage tanks, as may be necessary to 

protect human health and the environment; c 
• 7 HAZARDOUS WASTE MANAGEMENT 39-4407 

(9) Rules specifying radioactive materials or other radioactive materials 

occurring naturally that may be disposed of at a commercial hazardous 

waste facility or site. [I.C., § 39-4405, as added by 1983, ch. 154, § 1, p. 416; 

am. 1986, ch. 148, § 2, p. 415; am. 2001, ch. 297, § 4, p. 1072.] 

Compiler's notes. Sections 1 and 3 of S.L. Sec. to sec. ref. This section is referred to 

1986, ch. 148 are compiled as §§ 39-4403 and in § 39·4411. 

39·4408. 

Section 3 of S.L. 2001, ch. 297, is compiled 

as § 39-4403. 

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 RCRA; 

(2) May conduct and publish studies of hazardous waste management in 

this state; 

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

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

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

establishment of hazardous waste treatment or disposal facilities or sites; 

• 

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

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

1983, ch. 154, § 1, p. 416; am. 1993, ch. 291, § 3, p. 1082.] 

Compiler's notes. Section 2 of S.L. 1993, 

ch. 291 is compiled as § 39-4404. 

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

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

hazardous or nonhazardous, for the purposes of this chapter. 

(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. Toaccomplish this goal, the board may adopt by reference 

the regulations containing the lists of hazardous wastes and the set of 

characteristics for identifying hazardous wastes promulgated by the United 

States environmental protection agency pursuant to RCRA. The board shall 

update the regulations adopted pursuant to this section as needed to reflect 

regulatory amendments promulgated by the United States environmental 

protection agency. The board may adopt regulations for a state hazardous 

waste delisting program equivalent to that set forth in 40 CFR sections 

260.20(b) and 260.22. The state delisting program shall provide for public 

notice and opportunity for comment before granting or denying delisting 

requests. [I.C., § 39-4407, as added by 1983, ch. 154, § 1, p. 416; am. 1993, 

ch. 291, § 4, p. 1082.] 

• 

Compiler's notes. Section 5 of S.L. 1993, Sec. to sec. ref. This section is referred to 

ch. 291 is compiled as § 39-4410. in §§ 39~4411, 39-4427. 
39-4408 HEALTH AND SAFETY 8 

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 

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) of Section 2 of S.L. 1986, ch. 148 is compiled 

RCRA referred to in subsection (2) of this as § 39-4405. 

section is compiled as 42 V.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 o 
9 HAZARDOUS WASTE MANAGEMENT 39-4409 • 

•
 

•
 

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. 

(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; 

(b) Education and training qualifications of personnel at the facilities and 

sites; 

(c) Contractual commitment or consent to each facility or site from all 

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

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

effective management, maintenance, and monitoring of the facilities and 

sites during and after operation; 

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

off-site; 

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

compensate for potential damages caused by the facilities and sites; 

provided, that liability insurance shall not be required in the event that 

liability insurance is not required by the federal regulations adopted 

pursuant to the RCRA; 

(g) Emergency equipment and emergency response plaris appropriate to 

the facilities and sites; 

(h) Public participation in the permitting process consistent with 42 

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

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

maximum period allowed under ReRA, 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 in technology. 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. 
39-4409 HEALTH AND SAFETY 10 

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

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

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

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

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

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

the director, application of the requirements would cause unreasonable 

hardship and the granting of a variance would not be harmful to the public 

interest or inconsistent with RCRA requirements. A variance shall not 

exceed one (1) year in duration and may be renewed or extended only after 

the department provides public notice and an opportunity for public 

comment. 

(8)(a) The director of the department may issue a research, development 

and demonstration permit for any hazardous waste treatment technology 

or process for which permit standards for such experimental activity have 

not been promulgated. Any such permit shall include such terms and 

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

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

operation of the facility for not longer than one (1) year (unless renewed 

as provided below); and 

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 insurance) or of applicable 

public participation procedures. 

(d) The director may renew a research, development and demonstration 

permit which has been issued pursuant to this subsection. The renewal 

term shall be no longer than one (1) year. A permit shall not be renewed 

more than three (3) times. [I.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.] 
• 11 HAZARDOUS WASTE MANAGEMENT 39-4410 

Compiler's notes. This section was The words enclosed in parentheses so apamended by two 1988 acts which appear to be peared in the law as enacted. 

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

The amendment by ch. 7, in the first sen­ as § 39-441l. 

tence of subsection (5). inserted "issued"; and Sections 1 and 3 of S.L. 1988. ch. 259 are added subdivision (8)(d). compiled as §§ 39-4404 and 39-4413, respec­ The amendment by ch. 259, in subdivision tively. (2Xb), inserted "existing interim status sur­ Sec. to sec. ref. This section is referred to face impoundments"; and in the first sentence in §§ 39-4413, 39-4426. 39-4427. of subsection (5). inserted "issued." 

• 

39-4410. Transportation of hazardous waste. - (1) The board shall 

promulgate hazardous waste transportation rules and regulations to control 

the intrastate and interstate transportation of federally regulated types and 

quantities of hazardous waste. The rules and regulations shall be consistent 

with the rules and regulations issued by the United States department of 

transportation and the United States environmental protection agency. The 

rules and regulations shall also be consistent with the rules and regulations 

of the Idaho public utilities commission unless such consistency would 

impair the primacy or the effectiveness of the state's hazardous waste 

management program. In that case the board shall confer with the commission and endeavor to develop mutually acceptable transportation rules and 

regulations. Ifmutually acceptable rules and regulations cannot be developed, the board shall promulgate transportation rules and regulations that 

minimize conflict with the commission's rules and regulations while assuring the primary authority and effectiveness of the state's hazardous waste 

management program. Rules and regulations so promulgated by the board 

shall prevail over conflicting rules and regulations of the commission. 

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

to all transporters of federally regulated types and quantities of hazardous 

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

regulations shall apply to any movement of a regulated quantity of hazardous wastes to or from a hazardous waste facility or site. 

(3) The hazardous waste transportation rules and regulations shall 

provide for but not be limited to: 

(a) Standards for the containerization and labeling of hazardous wastes; 

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

(c) A hazardous waste tracking system requiring that: 

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

hazardous waste obtain an identification number from the department, 

the environmental protection agency, or another approved state program, before accepting hazardous waste for transport; 

(ii) All shipments of federally regulated types and quantities of hazardous waste to be shipped off site or received from off site be 

accompanied by a manifest or similar form describing the hazardous 

waste being shipped and its destination; 

• 

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

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

.the transporter for a minimum of three (3) years. 
39-4411 HEALTH AND SAFETY 12 

(4) The hazardous waste transportation rules and regulations may provide for special routing of hazardous waste shipments in this state when 

necessary to protect the public health, the public safety, or the environment 

consistent with federal statutory, regulatory and constitutional requirements. 

(5) No commercial hazardous waste disposal facility or site permitted 

under section 39-4409, Idaho Code, shall receive regulated quantities of 

hazardous waste as defined by federal law from a motor vehicle or trailer 

unless the hazardous waste is accompanied by a proper manifest and the 

transporter has obtained a special permit from the Idaho transportation 

department as provided in sections 49-2202 and 49-2203, Idaho Code. If an 

improperly documented shipment ofhazardous waste arrives at a permitted 

commercial hazardous waste facility or site, the owner or operator of the 

facility or site shall immediately notify the Idaho transportation department and the Idaho state police and follow the requirements of its permits 

and licenses for notification of appropriate agencies. [I.C., 39-4410, as 

added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 205, § 2, p. 502; am. 1986, 

ch. 231,§ 1,p.627;am. 1988,ch. 265, § 568,p. 549; am. 1993,ch. 291, § 5, 

p. 1082; am. 2000, ch. 469, § 98, p. 1450.] 

Compiler's notes. Sections 1 and 30fS.L. 

1984, ch. 205 are compiled as §§ 39-4403 and 

39-4417B, respectively. 

Section 2 of S.L. 1986, ch. 231 is compiled 

as § 39-44178. 

Sections 567 and 569 of S.L. 1988, ch. 265 

are compiled as §§ 36-1301 and 39-4426. 

Section 4 of S.L. 1993, ch, 291 is compiled 

as § 39-4407. 

Sections 97 and 99 ofS.L. 2000, ch. 469, are 

compiled as §§ 39-3562 and 39-5814, respectively. 

Section f, of S.L. 1986, ch. 231, read: "An 

emergency existing therefor, which emergency is hereby declared to exist, Section 

49-2512, Idaho Code \amended and redesignated as § 49-2210], 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 

39-4411. Records - Reporting 

January I, 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 July I, 1986, 

to acquire a vehicle registration endorsement 

prior to January 1, 1987, and any receipts 

therefrom shall be placed in the Hazardous 

Material/Hazardous Waste Transportation 

Enforcement Account which is created in section 49-2507, Idaho Code [amended and redesignated as § 49-22051, which is enacted by 

Section 4, of this act and Section 49-2507. 

Idaho Code, which is enacted by Section 4 of 

this act shall be in full force and effect on and 

after July 1, 1986. Approved April 3, 1986." 

Section 586 of S.L. 1987, ch. 265 provided 

that the act should become effective on and 

after January 1, 1989. 

Cross ref. Motor Carrier Act, §§ 61-801­

61-818. 

- Monitoring. - (1) Pursuant to 

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

amend as necessary, such rules 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
 (; 
• 13 HAZARDOUS WASTE MANAGEMENT 39-4411 

(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 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 rules 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 subject to disclosure according to chapter 3, title 9, Idaho 

Code. 

(4) Effective January 1, 1996, each generator shall, at the discretion of 

the director, no later than thirty (30) days after the end of each calendar 

year submit a written annual 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) Effective January 1,1996, the operator of each commercial hazardous 

waste disposal facility or site in the state shall, no later than thirty (30) days 

after the end of each calendar year, submit a written annual 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 March 1 of each year the department shall submit a report to 

the governor and the legislature detailing the types :md 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; am. 1990, ch. 

213,§ 43,p. 480; am. 1993,ch. 291, § 6,p. 1082; am. 1996,ch. 125,§ 1,p. 

439; am. 1998, ch. 125, § 4, p. 461.] 

Compiler's notes. Sections 4 and 6 of S.L. Section 3 of S.L. 1998, ch. 125 is compiled 

1986, ch. 148 are compiled as §§ 39-4409 and as § 39-117. 

39-4413. Section 5 of S.L. 1998, ch. 125 declared an 

Section 42 of S.L. 1990, ch. 213 is compiled emergency. Approved March 19, 1998. 

• as § 39-1393. Section 2 of S.L. 1996, ch. 125 declared an 

Section 7 of S.L. 1993, ch. 291 is compiled emergency and provided that the act should 

as § 39-4416. be in full force and effect on and after its 
39-4412 HEALTH AND SAFETY 14 

passage and approval and retroactive to Jan- Sec. to sec. ref. This section is referred to 

uary 1, 1996. Approved March 8, 1996. 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. 

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

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

authorized state employee or representative may, upon presentation of 

appropriate credentials, at any reasonable time: 

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

are or have been generated, transported, treated, stored, or disposed of to
 

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

labels;
 

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

means of conveyance where hazardous wastes are or have been contained
 

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

their labels;
 

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

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

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

to inspect and copy such documents.
 

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

operator, the department .shall provide the property owner or facility 

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

Duplicate samples shall similarly be provided upon request ifthe 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, and 

chapter 3, title 9, Idaho Code. The right of entry of a private contractor 

working in a representative capacity for the department may, however, be 

made subject to additional confidentiality requirements so long as those 

requirements do not interfere unreasonably with the development of information by the department or the transmission of information from the 

contractor to the department or the United States environmental protection 

agency. 

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

administrative search warrant upon a request from the director describing 

c 

c 
• 15 HAZARDOUS WASTE MANAGEMENT 39-4413 

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

program of inspection. [I.C., § 39-4412. as added by 1983, ch. 154, § 1, p. 

416; am. 1990, ch. 213, § 44, p. 480.) 

Compiler's notes. Section 45 ofS.L. 1990, vided that §§ 3 through 45 and 48 through 

ch. 213 is compiled as § 39·5211. 110 of the act should take effect July 1, 1993 

Section 111 of S.L. 1990, ch. 213 as and that §§ 1,2,46 and 47 should take effect 

amended by § 16 of S.L. 1991, ch. 329 pro- July 1, 1990. 

39-4413. Enforcement procedures. - (A) Whenever the director 

determines that any person is in violation of any provision of this chapter or 

any permit, standard, regulation, condition, requirement, compliance agreement or order issued or promulgated pursuant to this chapter, one or more 

of the following actions may be taken: 

(1) ADMINISTRATNE ENFORCEMENT ACTIONS. 

• 

(a) Notice. The director may commence an administrative enforcement 

action by issuing a written notice ofviolation. The notice of violation shall 

identify the alleged violation with specificity, shall specify each provision 

of the act, rule, regulation, permit or order which has been violated, and 

shall state the amount of civil penalty claimed for each violation. The 

notice of violation shall inform the person to whom it is directed of an 

opportunity to confer with the director or the director's designee in a 

compliance conference concerning the alleged violation. A written response may be required within fifteen (15) days of receipt of the notice of 

violation by the person to whom it is directed. 

(b) Scheduling Compliance Conference. If a recipient of a notice of 

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

notice, the recipient shall be entitled to a compliance conference. The 

conference shall be held within twenty (20) days of the date of receipt of 

notice, unless a later date is agreed upon between the parties. If a 

compliance conference is not requested, the director may proceed with a 

civil enforcement action as provided in subsection (3) of this section. 

(c) Compliance Conference. The compliance conference shall provide an 

opportunity for the recipient of a notice of violation to explain the 

circumstances of the alleged violation and, where appropriate, to present 

a proposal for remedying damage caused by the alleged violation and for 

assuring future compliance. If the recipient and the director agree on a 

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

future compliance, they may enter into a consent order formalizing their 

agreement. The consent order may include a provision for payment of any 

agreed civil penalty. 

(d) Effect of Consent Order. A consent order shall be effective immediately 

upon signing by both parties and shall preclude any civil enforcement 

action for the same alleged violation. If a party does not comply with the 

terms of the consent order, the director may seek and obtain in any 

appropriate district court specific performance of the consent order and 

• 

such other relief as authorized in this chapter. 

(e) Failure to Reach Agreement on Consent Order. If the parties cannot 

reach agreement on a consent order within sixty (60) days after the 
(J 39-4413 HEALTH AND SAFETY 16 

receipt of the notice of violation, or if the recipient does not request a 

compliance conference pursuant to subsection (A)(l)(b) ofthis section, the 

director may commence and prosecute a civil enforcement action in 

district court, in accordance with subsection (A)(3) of this section. 

(2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS. 

(a) Grounds. The director may revoke or temporarily suspend the permit 

of any hazardous waste facility or site pursuant to the grounds provided 

in subsection (6) of section 39-4409, Idaho Code. 

A violation that is shown to have occurred as the result of an unforeseeable act of God despite a permitted party's reasonable efforts to comply 

with all applicable legal requirements shall not be grounds for a suspension or revocation. 

(b) Notice of Hearing. The director shall commence a permit suspension 

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

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

or conduct which warrant suspension or revocation of the permit. The 

notice, hearing, and record requirements for contested cases contained in 

the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, 

and subsection (A)(2)(c) ofthis section shall apply to proceedings initiated 

under this subsection. Revocation or suspension of a permit shall become 

final fifteen (15) days after delivery of the notice of intent to revoke or 

suspend unless the permitted party requests a hearing. 

(c) Administrative Hearing Provisions. o 

(i) Upon a timely request by a permit holder for a hearing to review the
 

director's action under subsection (A)(2)(b) of this section, the director
 

shall promptly conduct a hearing open to the public. The contested case
 

provisions of the Idaho administrative procedure act shall apply to all
 

hearings conducted under this subsection.
 

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

court in and for Ada county or any other appropriate district court the
 

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

attendance and testimony of witnesses and the production before the
 

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

evidence relevant to a permit suspension or revocation investigation or
 

adjudication.
 

(iii) After the hearing, the director shall issue a written opinion setting
 

forth findings of fact, conclusions of law and an order. An aggrieved
 

person subject to the director's order may seek its review as a final order
 

in a district court as provided by the Idaho administrative procedure
 

act. District court review of the director's decision shall be limited to the
 

record developed before the director.
 

(3) CIVIL ENFORCEMENT ACTION. The attorney general may commence and prosecute in district court a civil enforcement action. Civil 

enforcement actions shall be commenced and prosecuted in the district 

court in and for the county in which the alleged violation occurred, and 

may be brought against any person who is alleged to have violated any 

provision of this chapter or any rule, regulation, permit, condition, 

requirement, consent order, or order which has become effective pursuant C) 
•
 

•
 

17 HAZARDOUS WASTE MANAGEMENT 39-4414 

to this chapter. Such action may be brought to compel compliance with 

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

promulgated hereunder, and for any relief or remedies authorized in this 

chapter. The director shall not be required to initiate or prosecute an 

administrative action before the attorney general may commence and 

prosecute a civil enforcement action. In addition, the attorney general 

may delegate this authority regarding civil enforcement actions to the 

prosecuting attorney of the county where a civil enforcement action may 

arise. 

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

bankruptcy, reorganization or other arrangement pursuant to the federal 

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

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

brought directly against a guarantor of financial responsibility by the state 

or any injured party for any claim arising from conduct for which guarantees of financial responsibility have been made. The guarantor may invoke 

all rights and defenses which would have been available to the owner or 

operator and all rights and defenses normally available to the guarantor. 

(C) LIMITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL 

COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF 

THIS CHAPTER. No civil or 'administrative proceeding may be brought to 

recover for a violation of this chapter or any permit, standard, regulation, 

condition, requirement or order issued or promulgated pursuant to this 

chapter more than two (2) years after the director had knowledge or ought 

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

added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 148, § 6, p. 415; am. 1988, 

ch. 259, § 3, p. 498; am. 1989, ch. 38, § 1, p. 49.] 

Compiler's notes. The federal bankruptcy Section 2 of S.L. 1988, ch. 259 is compiled 

code referred to in subsection (B) of this as § 39-4409. 

section is compiled as 11 U.S.C., § 101 et seq. Sec. to sec. ref. This section is referred to 

Section 5 of S.L. 1986, ch. 148 is compiled in §§ 39-4409, 39-4429. as § 39-4411. 

39-4414. Remedies. - The remedies specified in this section are 

cumulative and nonexclusive. 

(1) MONETARY PENALTIES. 

(a) Any person who makes a false statement or representation in any 

application, label, manifest, record, report, permit or other document 

filed, maintained, or used for the purpose of complying with the provisions 

of this chapter shall be liable for a civil penalty not to exceed ten thousand 

dollars ($10,000) for each separate violation or for each day of a continuing violation. 

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

regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be liable for a civil 

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

violation or for each day of a continuing violation. 

• 

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

account the seriousness of the violation, good faith efforts to comply with 
39-4414 HEALTH AND SAFETY 18 

the law, and an enforceable commitment by the person against whom the
 

penalty is directed to implement a supplemental environmental project.
 

For purposes of this section, "supplemental environmental project" means
 

a project which the person is not otherwise required to perform and which
 

prevents pollution, reduces the amount of pollutants reaching the envi­


ronment, contributes to public awareness of environmental matters, or
 

enhances the quality of the environment. In evaluating a particular
 

supplemental environmental project proposal, preference may be given to
 

those projects with an environmental benefit, which relates to the
 

violation or the objectives ofthe underlying statute which was violated, or
 

which enhances the quality of the environment in the general geographic
 

location where the violation occurred.
 

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

any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter may be 

assessed for: 

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


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

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

for preparing and litigating the case;
 

(c) The state's costs for mitigating, removing, correcting or terminating
 

(d) 

adverse 

The 

effects 

state's 

upon 

costs 

soil, air, or 

for impounding, 

water quality 

storing, 

resulting 

and disposing 

from the 

of 

violation;
 

contami­ c

nated property; 

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

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

to restore the resource to its highest previous use;
 

CD Compensation for damages to privately held resources including, but
 

not limited to, livestock, land, water, or other personal property, and
 

compensation for court costs allowed by statute, reasonable attorney's
 

fees for trial preparation and trial of the case, and all other reasonable
 

costs of trial preparation and trial of the case;
 

(g) Compensation for damages to personal health and compensation for
 

court costs allowed by statute, reasonable attorney's fees for trial prepa­


ration and trial of the case, and all other reasonable costs of trial
 

preparation and trial of the case;
 

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

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

(3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF. 

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

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

order issued or promulgated pursuant to this chapter shall be subject to a
 

permanent or temporary injunction, restraining order, or other relief
 

deemed appropriate. Upon a showing to the court that a violation is
 

causing an imminent hazard to the public health, the public safety, or to
 

the environment, the department need not allege or prove at any stage of
 

the proceeding that long-term irreparable damage will occur should the
 

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

•
 

•
 

19 HAZARDOUS WASTE MANAGEMENT 39-4416 

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

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

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

agreement, or order issued or promulgated pursuant to this chapter. 

(4) PAYMENT TO HAZARDOUS WASTE EMERGENCY ACCOUNT. All 

moneys collected by the department pursuant to subsections (1), (2) and (3) 

of this section to resolve any enforcement proceeding instituted under 

section 39-4413, Idaho Code, shall be paid into the hazardous waste 

emergency account created by section 39-4417, Idaho Code. [I.C., § 39-4414, 

as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 157, § 1, p. 383; am. 

1997, ch. 94, § 1, p. 219.] 

Compiler's notes. Section 2 of S.L. 1997, 

ch. 94 is compiled as § 39-108. 

39-4415. Violations constituting misdemeanors. - (1) Any person 

who knowingly makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, 

maintained or used for the purpose of complying with the provisions of this 

chapter shall be guilty of a misdemeanor and subject to a fine of not more 

than ten thousand dollars ($10,000) or to imprisonment not to exceed one (1) 

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

violation. 

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

any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be 

guilty ofa misdemeanor and subject to a fine of not more than ten thousand 

dollars ($10,000) or to imprisonment not to exceed one (1) year, or to both, 

for each separate violation or for each day of a continuing violation. 

(3) An action may be commenced and prosecuted by the attorney general. 

The director shall not be required to initiate or prosecute an administrative 

or civil action before the attorney general may commence and prosecute a 

criminal action. [I.C., § 39-4415, as added by 1983, ch. 154, § 1, p. 416; am. 

1984, ch. 54, § 1, p. 94.] 

39-4416. Citizen suits. - (1) Except as provided in subsection (2) of 

this section, any person who has been injured or damaged by an alleged 

violation of any permit, standard, regulation, condition, requirement, or 

order which has become effective pursuant to this chapter, may commence 

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) or in conformance with the requirements 

of rule 65(c) of the Idaho Rules of Civil Procedure if injunctive relief is 

sought. 

(2) No action may be commenced under subsection (1) ofthis section ifthe 

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 
39-4417 HEALTH AND SAFETY 20 

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) ofthe Idaho Rules 

of Civil Procedure. 

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

matter of right. 

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

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

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

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

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

state has become a party. 

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

of persons, may have under any other statute or the common law. [I.C., 

§ 39-4416, as added by 1983, ch. 154, § 1, p. 416; am. 1993, ch. 291, § 7, p. 

1082.) 

Compiler's notes. Sections 6 and 80fS.L. 

1993, ch. 291 are compiled as §§ 39-4411 and 

39-4427. respectively. 

39-4417. Hazardous waste emergency account. - (1) There is 

hereby created an account 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 controller 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 1975, ch. 180, § 2, p. 486; am. 1994, 

ch. 180, § 74, p. 420.1 

Compiler's notes. Section 241 of S.L. amendment to the Constitution of Idaho 

1994, ch. 180 provided that such act should changing the name of the state auditor to 

become effective on and after the first Monday state controller 11994 S.J.R. No. 109, p. 14931 

in January, 1995 IJanuary 2, 1995) if the was adopted at the general election held on o 

c 
• 21 HAZARDOUS WASTE MANAGEMENT 39-4421 

November 8, 1994. Since such amendment compiled as §§ 39·422 and 39-7110, respecwas adopted, the amendment to this section tively.
 

by § 74 of S.L. 1994, ch. 180 became effective Sec. to sec. ref. This section is referred to
 

January 2, 1995. in § 39-4414.
 

Sections 73 and 75 of S.L. 1994, ch. 180 are 

39-4417A. [Reserved.] 

39-4417B. Hazardous waste management account. [Repealed.] 

Compiler's notes. § 39-4417B, which § 2, p. 627; am. 1997, ch. 313, § 1, p. 926, was 

comprised I.e., § 39-4417B, as added by repealed by S.L. 1999, ch. 290, § 1, p. 718, 

1984, ch. 205, § 3, p. 502; am. 1986, ch. 231, effective July 1, 1999. 

39-441~. Local government notice. - A permit for a new hazardous 

waste land disposal facility or site shall not be issued until the department 

has given ninety (90) days' notice to the board of county commissioners of 

the county in which the proposed facility or site is to be located. [I.C., 

§ 39-4418, as added by 1983, ch. 154, § 1, p. 416.J 

• 

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

and the duty to encourage cooperative activities between the department 

and other states for the improved management of hazardous wastes, and so 

far as is practical, to provide for uniform state regulations and for interstate 

agreements relating to hazardous waste management. The state may enter 

into such agreements with other states to accomplish the purposes as set out 

in this chapter. [I.C., § 39-4419, as added by 1983, ch. 154, § 1, p. 416.] 

39·4420. Employment security. - (1) No employee of a hazardous !
 

waste generator, transporter or treatment, storage, or disposal facility or
 

site shall be dismissed, suspended, or otherwise discriminated against
 

because the employment testifies, provides information or otherwise assists
 

in the enforcement or administration of the provisions of this chapter.
 

(2) Any employer who knowingly violates the provisions of subsection (1) 

of this section shall be liable for damages, costs and attorneys' fees, in 

addition to any other liability 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 oflaw to the contrary, no person who provides assistance or advice 

in mitigating or attempting to mitigate the effects ofan 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 
c 

39-4422 HEALTH AND SAFETY 22 

(b) Who receives compensation other than reimbursement for out-of­


pocket 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. [l.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 Dotes. For words "this act" see 

Compiler's notes, § 39-4401. 

39-4423. Disposal of restricted hazardous wastes prohibited. ­

(1) Notwithstanding any other provision of law 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 o 

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 so 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 Dotes. Section 1 of S.L. 1986, 

ch. 324 is compiled as § 39-4403. o 
• 23 RI\ZARDOUS WASTE MANAGEMENT 39-4427 

•
 

•
 

39-4424. Disposal of manifested waste. - Manifested waste, as that 

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

or disposed of in this state at a permitted hazardous waste treatment, 

storage or disposal facility unless the burning of such manifested waste to 

produce heat is otherwise lawful. [I.C., § 39-4424, as added by 1989, ch. 253, 

§ 2, p. 626.] 

Compiler's Dotes. Section 1 of S.L. 1989, Section 3 of S.L. 1989, ch, 253 declared an 

ch. 253 is compiled as § 39-4403. emergency. Approved March 29, 1989. 

39-4425. [Reserved.] 

39-4426. Appointment of inspectors. - (1) The department of environmental quality' shall assign a sufficient number of employees and 

equipment to inspect hazardous waste facilities or sites permitted under 

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

hazardous waste occurs for the purpose of assuring the protection of the 

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

hazardous wastes which have been transported by common carrier. 

(2) 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 49, Idaho 

Code, and violations to any rules issued pursuant to section 67-2901A, Idaho 

Code. 

(3) All actions brought for violations of the provisions of this chapter or 

rules promulgated pursuant thereto shall be brought as provided for in this 

chapter. All actions brought for violations of the provisions of title 49, Idaho 

Code, shall be brought as provided in that title. [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; am. 1999, ch. 383, § 1, p. 1051; am. 2001, ch. 103, § 46, p. 

253.] 

Compiler's Dotes. Section 3 of S.L. 1984, Sections 45 and 47 ofS.L. 2001, ch. 103 are 

ch. 205 was repealed. compiled as §§ 39-4403 and 39-4428, respecSection 4 of S.L. 1986, ch. 231 is compiled tively. as § 49-2201 - 49-2212, and section 2 was Section 586 of S.L. 1987, ch. 265 provided repealed. that the act should become effective on and 

Sections 568 and 570 of S.L. 1988, ch. 265 after January 1, 1989. are compiled as §§ 39-4410 and 40-701. 

Section 2 of S.L. 1999, ch. 383, is compiled 

as § 40-510. 

39-4427. Commercial disposal fees. - (1) There is imposed on the 

owner or operator of every commercial hazardous waste disposal facility or 

site permitted under section 39-4409, Idaho Code, the lowest applicable fee 

for each ton of waste or fraction thereof, as follows: 

(a) Thirty dollars ($30.00) per gate ton or fraction thereof for all hazardous wastes as defined by RCRA or section 39-4407, Idaho Code; 

(b) Twenty-five dollars ($25.00) per gate ton or fraction thereof for all 

manifested wastes not otherwise defined in this subsection; 
39-4427 HEALTH AND SAFETY 24 c

(c) Twenty dollars ($20.00) per gate ton or fraction thereoffor the first two
 

thousand five hundred (2,500) gate tons or less of wastes received by a
 

facility or site in a calendar year from the same initial generator if the
 

wastes: (i) are PCBs regulated under Idaho or federal law and are in
 

concentrations greater than fifty (50) parts per million; (ii) are hazardous
 

debris; (iii) are hazardous wastes that become subject to regulation solely
 

as a result of a removal or remedial action taken in response to environ­


mental contamination; or (iv) are hazardous wastes that result from
 

corrective action or closure of a regulated or nonregulated hazardous
 

waste management unit;
 

(d) Ten dollars ($10.00) per gate ton or fraction thereof for all wastes
 

contained in paragraph (c) of this subsection, if the wastes are received by
 

the same facility or site and are from the same initial generator in an
 

amount greater than two thousand five hundred (2,500) gate tons in the
 

same calendar year;
 

(e) Five dollars ($5.00) per gate ton or fraction thereof for all hazardous
 

wastes that: (i) are delisted or treated so that the wastes are no longer
 

hazardous wastes; or (ii) are nonhazardous radiologically contaminated
 

wastes including materials from the "Formerly Utilized Sites Remedial
 

Action Program (FUSRAP)" sites administered by the government of the
 

United States; or (iii) are PCBs in concentrations less than fifty (50) parts
 

per million and not otherwise regulated by Idaho or federal law; or (iv) are
 

wastes 

(2) The 

not 

fees 

otherwise 

set forth in 

defined 

subsection 

in this 

(1) 

subsection.
 

ofthis section shall not apply to any o

of the following types of wastes: 

(a) Wastes generated or disposed of by a public agency or other person
 

operating a household hazardous waste collection program;
 

(b) Wastes generated or disposed of by any agency of the state of Idaho. 

Any waste for which the fees are waived under the provisions of this 

section must be noted as fee-waived waste on the return required in section 

39-4428, Idaho Code, and is subject to all audit provisions of section 

39-4429, Idaho Code. 

(3) For wastes disposed of by any agency of the state of Idaho at any 

commercial hazardous waste disposal facility or site permitted under 

section 39-4409, Idaho Code, the director, pursuant to a written agreement 

with the director, the owner or operator of any such facility or site, may 

credit on the return required in section 39-4428, Idaho Code, and in the fee 

remitted, an amount equal to the actual cost charged by such owner or 

operator per gate ton or fraction thereof for the characterization, collection, 

identification, transportation, treatment, storage and disposal of wastes at 

such facility or site. [l.C., § 39-4427, am. and redesig. 1999, ch. 290, § 2, p. 

718; am. 2001, ch. 297, § 2, p. 1072; am. 2002, ch. 176, § 1, p. 522.] 

Compiler's notes. Former § 39-4427, ignate as § 39-4427A by S.L. 1998, ch. 229, 

which comprised 1984, ch. 205, § 5, p. 502; § 1, p. 778. 

am. 1992, ch. 251, § 1, p. 735; am. 1993, ch. This section was formerly compiled as § 39­

291, § 8, p. 1082; am. 1994, ch. 419, § 2, p. 4427A. 

1310; am. 1995, ch. 127, § 1, p. 856; am. 1997, Section 3 of S.L. 2001, ch. 297, is compiled 

ch. 313, § 2, p. 926; was amended and redes- as § 39-4403. o 
• 25 HAZARDOUS WASTE MANAGEl\'1ENT 39-4427C 

Section 2 of S.L. 2002, ch. 354, is compiled 

as § 39-5909. 

39-4427A. [Amended and Redesignated.] 

Compiler's notes. Former § 39-4427A This section was formerly compiled as § 39­

was amended and redesignated as § 39-4427 4427A. 

by S.L. 1999, ch. 290, § 2. 

394427B - 39-4427D. Generator fees - Treatment, storage or 

disposal facility fee ­

cation. [Repealed.] 

Compiler's notes. The following sections 

were repealed by S.L. 1999, ch. 290, § I, p. 

718, effective July 1, 1999: 

Former section 39-4427B, which comprised 

S.L. 1998, ch. 229, § 2, p. 778, am. S.L. 1999, 

ch. 49, § 1, was amended by S.L. 1999, ch. 49, 

§ 1, effective July I, 1999 and was repealed 

by S.L. 1999, ch. 290, § I, effective July 1, 

1999. 

• 

39-4427C, which comprised S.L. 1998, ch. 

229, § 3, p. 778, was repealed by S.L. 1999, 

ch. 290, § 1, effective July 1, 1999 . 

39-4427D, which comprised S.L. 1998, ch. 

229, § 4, p. 778, was repealed by S.L. 1999, 

ch. 290, § I, effective July I, 1999. 

Section 39-4427B as amended by S.L. 1999, 

ch. 49, § 1 read: "Generator fees. (1) For 

any generator generating waste during calendar year 1998, there is imposed a generator 

fee to be remitted to the department of health 

and welfare no later than thirty (30) days 

after the end of calendar year 1998, as follows: 

"(a) A generator who generates two and 

two-tenths (2.2) pounds or more of acutely 

Hazardous waste fees - Duplihazardous waste as defined by 40 CFR section 

261, in any calendar month, or generates 

more than two thousand two hundred (2,200) 

pounds of hazardous waste at any time in a 

calendar month, shall be subject to an annual 

fee of two thousand dollars ($2,000); 

"(b) A generator who generates between 

two hundred twenty (220) and two thousand 

two hundred (2,200) pounds of hazardous 

waste in one (1) calendar month, shall be 

subject to an annual fee of seven hundred fifty 

dollars ($750). 

"(2) The fee set forth in subsection (1) of 

this section shall not apply to generators who: 

"(a) Are public or governmental entities; 

"(b) Are dry cleaners; or 

"(e) Demonstrate, to the satisfaction of the 

director of the department, an inability to pay 

all or a portion of the fee. 

"(d) For purposes of this section, "dry 

cleaners" means any generator who owns or 

operates a business the primary purpose of 

which is to dry clean apparel and fabrics for 

the general public, as described in standard 

industrial classification no. 7216." 

39-4427C. Treatment, storage or disposal facility fee. - (1) Any 

hazardous waste treatment, storage and disposal facility subject to regulation by the department of health and welfare during calendar year 1998, 

shall be subject to a five thousand dollar ($5,000) fee to be remitted to the 

department of health and welfare no later than thirty (30) days after the end 

of calendar year 1998. 

(2) The fee set forth in subsection 0) of this section shall not apply to 

facilities which: 

(a) Are owned or operated by public or governmental entities; or 

(b) Demonstrate, to the satisfaction of the director of the department, an 

inability to pay all or a portion of the fee. [I.C., § 39-4427C, as added by 

1998, ch. 229, § 3, p. 778.) 

•
 

Compiler's notes. Section 8 of S.L. 1998, Sec. to sec. ref. This section is referred to
 

ch. 229 declared an emergency. Approved in § 39-4427D.
 

March 20, 1998.
 
39-4427D HEALTH AND SAFETY 26 o

39-4427D. Hazardous waste fees - Duplication. - (1) Any owner 

or operator, generator or treatment, storage or disposal facility subject to 

more than one 0) fee under section 39-4427A, 39-4427B or 39-4427C, Idaho 

Code, shall only be required to pay the highest applicable fee under anyone 

(1) of those sections. 

(2) For purposes ofthis section, the fee for section 39-4427A, Idaho Code, 

shall be the total amount required to be paid under subsection (1) of section 

39-4427A, Idaho Code. [I.C., § 39-4427D, as added by 1998, ch. 229, § 4, p. 

778.] 

Compiler's notes. Section 8 of S.L. 1998, 

ch. 229 declared an emergency. Approved 

March 20, 1998. 

39-4428. Collection of commercial disposal fees - Returns. ­

(1) The fees imposed under section 39-4427, Idaho Code, shall be due and 

payable in monthly installments by the owner, agent, employee, or operator 

of such hazardous waste facility or site and remittance shall be made to the 

Idaho department of environmental quality on or before the fifteenth day of 

the month next succeeding the end of the monthly period in which the fee 

accrued. The owner, operator or designated employee or agent of the 

hazardous waste facility or site, on or before the fifteenth day of the month, 

shall make out a return, upon such forms setting forth such information as 

owner 

the department 

or operator 

may 

of 

require, 

the hazardous 

showing 

waste 

the amount 

facility 

of 

or 

the 

site 

fee for 

is liable 

which 

for the 

the o

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;am. 1998,ch.229,§ 5,p.778;am. 1999, ch. 290, § 3,p.716;aID. 

2001, ch. 103, § 47, p. 253.] 

Compiler's notes. Section 46 of S.L. 2001, emergency. Approved March 20, 1998. 

ch. 103 is compiled as § 39-4426. Sec. to sec. ref. This section is referred to 

Section 8 of S.L. 1998, ch. 229 declared an in § 39-4427. 

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

subject to the imposition ofthe 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 ofthe 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 chapter, at any time o 
• 27 ~DOUSWASTEMANAGEMENT 39-4431

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 applicable 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 environmental quality under subsection (b) of section 39-4413, Idaho 

Code. [I.C., § 39-4429, as added by 1984, ch. 205, § 7, p. 502; am. 1998, ch. 

229, § 6, p. 778; am. 1999, ch. 290, § 4, p. 718; am. 2001, ch. 103, § 48, p. 

253.] 

Compiler's notes. Section 7 of S.L. 1998, emergency. Approved March 20, 1998. 

ch. 229 is compiled as § 39-4432.. 

• 

"Water" and "Chemical" Distinguished. Section 5 of S.L. 1999, ch. 290 is compiled The legislature has indicated by its use of as § 39-4431. the word "chemical" in several statutes that Section 49 of S.L. 2001, ch. 103 is compiled water should not be considered to be a "chem­ as § 39-4431. ical." Moosman v. Idaho Horse Racing Section 8 of S.L. 1998, ch. 229 declared an Comm'n, 117 Idaho 949,793 P.2d 181 (1990). 

39-4430. Additions and penalties. - The additions, penalties, and 

requirements provided by the Idaho income tax act, sections 63-3046, 

63-3075,63-3076 and 63-3077, Idaho Code, as they now exist or as they may 

be subsequently amended, shall apply in the same manner and to the same 

extent to this act as to the Idaho income tax act and shall cover such 

additions, penalties and requirements and shall, for this purpose, be 

described and be for acts, omissions, delinquencies, and requirements under 

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

39-4431. Collection and enforcement. - (1) The collection and enforcement procedures available to the Idaho state tax commission provided 

by the Idaho income tax act, sections 63-3030A, 63-3038, 63-3039, 63-3040, 

63-3042 through 63-3045A, 63-3047 through 63-3065A, 63-3068, 63-3070, 

63-3071, 63-3072, 63-3073 and 63-3078, Idaho Code, as they now exist or as 

they may subsequently be amended, shall apply and be available to the 

department of environmental quality for the enforcement of the commercial 

disposal fee and for the assessment and collection of any amounts due 

thereunder. Said sections shall, for the aforementioned purposes, be considered part of this chapter and wherever liens or any other proceedings are 

• 

defined as income tax liens or proceedings, they shall, when applied in 

enforcement or collection under this chapter, be described as commercial 

disposal fee liens and proceedings. 
o
 

39-4432 HEALTH AND SAFETY 28 

(2) The department of environmental quality may be made a party 

defendant in any action at law or in equity by any person aggrieved by the 

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

an overpayment, but only the state ofIdaho shall be responsible for any final 

judgment secured against the department of environmental quality and 

said judgment shall be paid or satisfied out of the general fund of the state. 

[l.C., § 39-4431, as added by 1984, ch. 205, § 9, p. 502; am. 1997, ch. 313, 

§ 3, p. 926; am. 1999, ch. 290, § 5, p. 718; am. 2001, ch. 103, § 49, p. 253.] 

Compiler's notes. Section 63-3070 reo Section 4 of S.L. 1999, ch. 290, is compiled 

ferred to in this section was repealed by S.L. as § 39-4429. 

1989, ch. 363, § 2. Sections 48 and 50 of S.L. 2001, ch. 103 are 

Section 2 of S.L. 1997, ch. 313 is compiled compiled as §§ 39-4429 and 39-5803, respecas § 39-4427. tively. 

39-4432. Distribution of commercial disposal fee revenues. - The 

revenues received from the commercial disposal fees imposed by this 

chapter and any penalties, interest, or deficiency additions, shall be paid 

over to the state treasurer by the department to be distributed periodically 

but no less frequently than quarterly as follows: 

(1) An amount equal to ninety-five percent (95%) shall be remitted to the 

general fund of the state; and C) (2) An amount equal to the remaining five percent (5%) shall be remitted 

to the county treasurer of the county or counties where the activity occurred 

which caused the fees to be assessed pursuant to this chapter. Moneys shall 

be apportioned to the counties in the same proportional manner in which 

they were collected. Moneys returned to counties shall be utilized by the 

county to respond to health and environmental problems which may be 

caused by hazardous waste emergencies or spills, or improperly handled or 

packaged hazardous waste. [I.C., § 39-4432, as added by 1984, ch. 205, 

§ 10,p. 502; am. 1989,ch.419, § l,p. 1023; am. 1997,ch.313, § 4, p. 926; 

am. 1998, ch. 229, § 7, p. 778; am. 1999, ch. 290, § 6, p. 718.] 

Compiler's notes. Section 11 of S.L. 1984, emergency. Approved April 3, 1984. 

ch. 205 is compiled as § 67-2917. Section 8 of S.L. 1998. ch. 229 declared an 

Section 6 of S.L. 1998, ch. 229 is compiled emergency. Approved March 20, 1998. 

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

Section 14 of S.L. 1984, ch. 205 declared an in § 39-7204. 

CHAPTER 45 

NATURAL DEATH ACT 

SECTION. SECTION. 

39-4501. Short title. 39·4506. Revocation.
 

39-4502. Statement of policy. 39-4507. Execution of directive.
 

39-4503. Definitions. 39-4508. Immunity. 39·4504. Living will. 39-4509. General provisions. 39-4505. Durable power of attorney for 

health care. o 
•
 

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 

R. DANIEL BOWEN
 

THOMAS A. MILLER RICHARD F. GOODSON
 

COMMISSIONERS
 

MAX M. SHEILS, JR. 

EXECUTIVE SECRETARY 

TITLES 39 (44-83), 40 

A~~MICHIE

•
 
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service mark of Reed Elsevier Properties Inc.• used under license. Matthew 

Bender is a registered trademark of Matthew Bender PropertiesInc. 

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All rights reserved.
 

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4226910 

ISBN 0-327-03977-9 

"Michie" and the Open Book and Gavel logo are trademarks of
 

LEXIS Publishing, a division of Reed Elsevier Inc.
 

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•
 

•
 

PUBLISHER'S NOTE 

Since the publication in 1998 of Replacement Titles 39 (44-83), 40 many 

laws have been amended or repealed and many new laws have been enacted. 

The resulting increase in the size of the cumulative supplement for Titles 39 

(44-83), 40 has made it necessary to revise this volume. Accordingly, 

Replacement Titles 39 (44-83),40 is issued with the approval and under the 

direction of the Idaho Code Commission. 

'Io better serve our customers, by making our annotations more current, 

LexisNexis has changed the sources that are read to create annotations for 

this publication. Rather than waiting for cases to appear in printed 

reporters, court decisions are now being read as they are released by the 

courts. A consequence of this more current reading of cases, as they are 

posted on lexis.com, is that the most recent cases annotated may not yet 

have print reporter citations. These will be provided, as they become 

available, through later publications. 

This publication contains contains annotations taken from decisions of 

the enacted by the Idaho Supreme Court and the Court of Appeals, and the 

appropriate federal courts, posted on lexis.com as of March 19, 2002. These 

cases will be printed in the following reports: 

Pacific Reporter, 3rd Series 

Federal Supplement, 2nd Series 

Federal Reporter, 3rd Series 

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

Additionally, annotations have been taken from the following sources: 

American Law Reports, 5th Series, through Volume 93 

American Law Reports, Federal Series, through Volume 173 

Opinions of Attorney General, 2001-3 

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

throughout the Idaho Code. 

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

I.R.E. Idaho Rules of Evidence 

I.C.R. Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

I.I.R. Idaho Infraction Rules 

I.J.R. Idaho Juvenile Rules 

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

I.A.R. Idaho Appellate Rules 

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please write or call toll free 1-800-833-9844, fax toll free at 1-800-643-1280, 

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• iii. 
o
 

39-5801 HEALTH AND SAFETY 86 

CHAPTER 58 

HAZARDOUS WASTE FACILITY SITING 

SECTION. SECTION. 

39·5801. Short title. disposal facility - Review ­


39-5802. Legislative intent. Siting licenses.
 

39-5803. Definitions. 39-5812. Site review panels - Members,
 

39-5804. Methods of hazardous waste man­ chairman, quorum, meetings,
 

agement. staff. . 

39-5805. State hazardous waste manage­ 39-5813. Siting license application - Fee ­

ment planning committee ­ Rules and regulations. 

Creation - Members. 39-5814. Duties of director upon receipt of a 

39-5806. State hazardous waste siting man­ siting license application ­

agement plan - Preparation Recommendation. 

- Inclusions - Studies -, 39-5815. IRepealed.] 

Public hearings - Summary 39·5816. Local restrictions on hazardous 

- Amendments - Recom­ waste treatment, storage, or 

mendation. disposal facility construction. 

39·5807. Amendment or rejection of plan. 39-5817. Coordination and integration with 

39-5808. Siting license required. state and federal law. 

39-5809. Permits and licenses - Issuance 39-5818. Information obtained - Public 

prior to adoption of plan. record. 

39·5810. Licenses - Issuance after adoption 39-5819. Certification of CIty, county, or disof plan. trict health departments. 

39-5811. Expansion, enlargement or alter­ 39-5820. Remedy for devaluation of property 

ation of treatment, storage, or caused by approved facility. 

39·5801. Short title. - This chapter shall be known and may be cited 

as the "State Hazardous Waste Facility Siting Act." [I.C., § 39-5801, as 

added by 1985, ch. 113, § 1, p. 220.] 

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

in § 39·7402A. 

39-5802. Legislative intent. - (1) The legislature of the state of 

Idaho hereby finds that adverse public health and environmental impacts 

can result from the improper land disposal of hazardous waste and that the 

need for establishing safe sites with adequate capacity for the disposal of 

hazardous waste is a matter of statewide concern, and the provisions of this 

chapter are therefore enacted to provide an effective method of establishing 

such sites. 

(2) It is the intent of the legislature of the state ofIdaho that generators 

of hazardous waste be encouraged to use on-site and off-site alternative 

treatment methods to reduce the amount of hazardous waste that must be 

discharged into the environment and to reduce associated hazards to the 

health and welfare of the citizens of this state. Alternative management 

technologies which detoxify, stabilize and reduce the amount of hazardous 

waste that must be buried are available. For such purpose, the provisions of 

this chapter are enacted to allow the development of safe alternative 

methods for the treatment of hazardous waste and to provide a means for 

the designation of hazardous waste disposal sites when such methods are 

unable to obviate the need for hazardous waste disposal on land. Whereas 

the state of Idaho may be responsible for the perpetual care of hazardous 

waste land disposal facilities, alternative technologies such as incineration, 

o
 

o
 
• 87 HAZARDOUS WASTE FACILITY SITING 39-5803 

resource recovery, or physical, chemical or biological degradation should be 

implemented to the maximum extent possible. 

(3) It is the intent of the legislature that the site license process not 

duplicate the existing hazardous waste management act permitting process 

as set forth in section 39-4409, Idaho Code. The site license is a preliminary, 

general review which is not based on the type of specific, detailed technical 

information required for the hazardous waste management act permit. [I.C., 

§ 39-5802, as added by 1985, ch. 113, § 1, p. 220; am. 1987, ch. 103, § 1, p. 

207.] 

Compiler's notes. Section 2 of S.L. 1987, 

ch. 103 is compiled as § 39·5812. 

39·5803. Definitions. - As used in this chapter: 

(1) "Panel" means the site review panel created in section 39-5811, Idaho 

Code. 

(2) "Committee" means the state hazardous waste management planning 

committee created in section 39-5805, Idaho Code. 

(3) "Department" means the department of environmental quality. 

• 

(4) "Designated facility" means a hazardous waste treatment, storage or 

disposal facility which has received a permit or has interim status under 

title II of the solid waste disposal act or has a permit from the state 

authorized under section 3006 of title II of the solid waste disposal act (42 

U.S.C.A. section 3006). 

(5) "Director" means the director of the department of environmental 

quality. 

(6) "Disposal" is defined in section 39-4403, Idaho Code. 

(7) "Disposal facility" means a facility or a part of a facility at which 

managed hazardous waste, as defined by rule, is intentionally placed into or 

on any land or water and at which hazardous waste will remain after 

closure. 

(8) "Generator" is defined in section 39-4403, Idaho Code. 

(9) "Hazardous waste" is defined in section 39-4403, Idaho Code. 

(10) "Hazardous waste management" is defined in section 39-4403, Idaho 

Code. 

(11) "On-site" means on the same or geographically contiguous property 

which may be divided by a public or private right-of-way ifthe entrance and 

exit between the pieces of property are at a crossroads intersection and 

access is by crossing rather than going along the right-of-way. 

Noncontiguous pieces of property owned by the same person but connected 

by a right-of-way which the owner controls and to which the public does not 

have access is also considered on-site property. 

(12) "Operator" means the person responsible for the overall operation of 

a disposal, treatment or storage facility with approval of the director either 

by contract or permit. 

(13) "Person" is defined in section 39-4403, Idaho Code. 

(4) "Plan" means the state hazardous waste management plan prepared 

• 

under the provisions of section 39-5806, Idaho Code. 

(5) "Storage" is defined in section 39-4403, Idaho Code. 
39-5804 HEALTH AND SAFETY 88 o

(16) "Storage facility" means a facility or part of a facility at which 

managed hazardous waste, as defined by rule and regulation is subject to 

storage. 

(17) "Title II of the solid waste disposal act" means sections 1001 through 

8006 of public law 89-272, 42 U.S.C. 6901, 6902 through 6910, 6912 through 

6940 and 6942 through 6986. 

For purposes of this chapter, words and phrases defined in section 

39-4403, Idaho Code, shall carry the same meaning when used in this 

chapter unless the context clearly denotes otherwise. [I.C., § 39-5803, as 

added by 1985, ch. 113, § 1, p. 220; am. 2001, ch. 103, § 50, p. 253.] 

Compiler's notes. The reference in subdi­ Sections 49 and 51 of S.L. 2001, ch. 103 are 

vision (1) to the review panel created "in compiled as §§ 39-4431 and 39-5805, respecsection 39-5811" appears to refer to the panel tively. 

created in § 39-5812. 

39·5804. Methods of hazardous waste management. - The department and the committee in the conduct of their duties under the provisions 

of this chapter and under the provisions of chapter 44, title 39, Idaho Code, 

shall assist in encouraging, developing and implementing methods of 

hazardous waste management which are environmentally sound, which 

maximize the utilization of valuable resources and which encourage resource conservation including source separation and waste reduction. [I.C., 

§ 39-5804, as added by 1985, ch. 113, § 1, p. 220.] o 

39·5805. State hazardous waste management planning committee - Creation - Members. - 0) The state hazardous waste management planning committee IS hereby created in the department. The committee shall represent diverse geographical areas of the state. No later than 

September 1, 1985, the governor shall, subject to the advice and consent of 

the senate, appoint seventeen (17) members to the committee consisting of 

the following representatives: 

(a) One (1) representative of city government; 

(b) One (1) representative of county government; 

(c) One (1) hazardous waste transporter; 

(d) One (1) hazardous waste generator; 

(e) One (1) hazardous waste treatment, storage, or 

operator; 

(f) One (1) member of an environmental group; 

(g) One (1) member of a conservation group; 

(h) Two (2) members of the general public;
 

. (i) The director of the department or his designee;
 

disposal facility 

(j) The director of the department of water resources or his designee; 

(k) One (1) licensed professional engineer; 

(l) A faculty member of a university or college in this state well versed in
 

geology, hydrology or other environmental matters;
 

(rn) The director of the Idaho transportation department or his designee;
 

(n) One (1) representative of the mining industry; 

(0) One (1) representative of the forest products industry; and o 
•
 

•
 

•
 

89 HAZARDOUS WASTE FACILITY.SITING 39-5806 

(p) One (1) representative of the agricultural industry. 

(2) A vacancy occurring on the committee shall be filled in the same 

manner as the original appointment. 

(3) The chairman ofthe committee shall be elected by the members of the 

committee and the chairman shall be a voting member of the committee. 

(4) Members of the committee who are not state employees shall be 

entitled to receive compensation as provided in section 59-509(b), Idaho 

Code. 

(5) The committee by majority vote shall establish operating procedures. 

The operating procedures shall be made available for public review. 

(6) In the conduct ofits business, the committee shall solicit the advice of, 

and consult periodically with cities, counties and persons within the state 

for the purpose of receiving information or advice that may be helpful in the 

preparation of the plan. 

(7) Employees of the department of environmental quality, department of 

water resources and the transportation department shall assist the committee on a priority basis. 

(8) The committee shall disband after final approval of the plan by the 

legislature. 

(9) Upon petition to the director and the director's recommendation to the 

governor, the governor shall appoint a committee in the same manner as the 

original committee to amend or revise the plan. 

(10) The committee shall hold its first meeting as soon as practicable 

after confirmation by the senate. u.c., § 39-5805, as added by 1985, ch. 113, 

§ 1, p. 220; am. 2001, ch. 103, § 51, p. 253.] 

Compiler's notes. Section 50 ofS.L. 2001, 

ch. 103 is compiled as § 39-5803. 

39-5806. State hazardous waste siting management plan - Preparation - Inclusions - Studies - Public hearings - Summary ­

Amendments - Recommendation. - (1) Not later than January 1, 

1987, the committee shall prepare a state hazardous waste siting management plan. 

(2) The plan shall: 

(a) Provide for a reasonable geographic distribution of hazardous waste 

treatment, storage, or disposal facilities to meet existing and probable 

future needs. 

(b) Be based upon location of generators, health and safety, economics of 

transporting, types of waste and existing hazardous waste treatment, 

storage, or disposal facilities. 

(c) Include necessary legislative, administrative and economic mechanisms, a timetable to carry out the plan. 

(3) The committee may instruct the department of environmental quality, 

the department of water resources and the transportation department to 

complete studies as considered reasonably necessary for the completion of 

the plan. The studies may include: 
39-5807 HEALTH AND SAFETY 90 o

(a) An inventory and evaluation of the sources of hazardous waste
 

generation within this state or from other states, including the types and
 

quantities of the hazardous waste.
 

(b) An inventory and evaluation ofcurrent hazardous waste management
 

practices and costs, including treatment and disposal, within this state.
 

(c) A projection or determination of future hazardous waste management
 

needs based on an evaluation of existing capacities, treatment or disposal
 

capabilities, manufacturing activity, limitations and constraints. Projec­


tion of needs shall consider the types and sizes of hazardous waste
 

treatment, storage, or disposal facilities, general locations within the
 

state, management control systems, and an identified need for additional
 

privately owned or state owned treatment, storage, or disposal facilities.
 

(d) An investigation and analysis ofmethods and incentives to encourage
 

interstate and international cooperation in the management of hazardous
 

waste.
 

(e) An investigation and analysis of methods, incentives or technologies
 

for source reduction, reuse, recycling, or recovery of potentially hazardous
 

waste and a strategy for encouraging the utilization or reduction of
 

hazardous waste.
 

(f) An investigation and analysis of alternate methods for treatment and
 

disposal of hazardous waste.
 

(4) Upon completion of the plan, the committee shall publish a notice 

Code, 

after giving 

in a number 

twenty 

of 

(20) 

newspapers 

days' notice 

and 

as 

shall 

provided 

issue a 

in 

statewide 

section 60-109, 

news release 

Idaho o

announcing the availability of the plan for inspection by interested persons. 

The announcement shall indicate where and how the plan may be obtained 

or reviewed and shall indicate that not less than three (3) public hearings 

shall be conducted at varying locations in the state before formal adoption. 

The first public hearing shall not be held until sixty (60) days have elapsed 

from the date of the notice announcing the availability of the plan. 

(5) After public hearings, the committee shall prepare a written summary of the comments received, provide comments on the major concerns 

raised, make amendments to the plan as necessary and shall formally adopt 

the plan, and shall submit the plan to the legislature at the first regular 

session of the legislature following adoption of the plan. [I.e., § 39-5806, as 

added by 1985, ch. 113, § 1, p. 220; am. 2001, ch. 103, § 52, p. 253.] 

Compiler's Dotes. Section 53 ofS.L. 2001, 

ch. 103 is compiled as § 39-5812. . 

39·5807. Amendment or rejection of plan. - The legislature shall 

amend, adopt or reject the plan by passage of a concurrent resolution at the 

regular legislative session when it receives the plan. If the legislature 

amends or rejects the plan, it shall indicate its reasons for amendment or 

rejection by passage of a concurrent resolution and return the plan to the 

committee. [I.C., § 39-5807, as added by 1985, ch. 113, § 1, p. 220.] 

o
 
• 91 HAZARDOUS WASTE FACILITY SITING 39-5812

•
 

•
 

39·5808. Siting license required. - No person shall construct, expand, enlarge or alter a commercial hazardous waste disposal, treatment or 

storage facility or anyon-site land disposal facility for wastes listed 

pursuant to section 201(d)(2) and (e), as modified by section 209 of "The 

Hazardous and Solid Waste Amendments of 1984," as enacted by the U.S. 

congress, without a siting license from the department. The owner or 

operator of the facility or site rather than the builder shall be responsible for 

obtaining the license. Facilities exempted from permitting under the provisions of section 39-4409, Idaho Code, shall not require a license under the 

provisions of this chapter. [I.C., § 39-5808, as added by 1985, ch. 113, § 1, 

p. 220.] 

39-5809. Permits and licenses - Issuance prior to adoption of 

plan. - The director may issue permits under the provisions of chapter 44, 

title 39, Idaho Code, or licenses pursuant to this chapter, for existing or 

proposed hazardous waste treatment, storage or disposal facilities and other 

authorized operations before the adoption of the plan by the committee. 

[I.C., § 39-5809, as added by 1985. ch. 113. § 1, p. 220.1 

39-5810. Licenses - Issuance after adoption of plan. - After the 

plan has been adopted by the committee, the director shall not issue a 

license under the provisions of this chapter for a hazardous waste treatment, storage or disposal facility until the director has made a determination that the action is consistent with the adopted hazardous waste 

management plan. The director may exempt classes or categories of hazardous waste treatment, storage or disposal facilities from complying with 

the hazardous waste management plan if the exemption is in the public 

interest and consistent with state and federal law. If the director exempts 

classes or categories of hazardous waste treatment, storage or disposal 

facilities from complying with the hazardous waste management plan, rules 

and regulations shall be promulgated in compliance with chapter 52, title 

67, Idaho Code, specifically indicating the exemption. [I.C., § 39-5810, as 

added by 1985, ch. 113, § I, p. 220.] 

39·5811. Expansion, enlargement or alteration of treatment, 

storage, or disposal facility - Review - Siting licenses. - (1) A 

hazardous waste treatment, storage, or disposal facility in existence on July 

1, 1985, shall not require a review under the provisions of this chapter. 

(2) The expansion, enlargement, or alteration of a hazardous waste 

treatment, storage, or disposal facility in existence on July 1, 1985, 

constitutes a new proposal for which a siting license is required. [I.C., 

§ 39-5811, as added by 1985, ch. 113, § 1, p. 220.] 

39-5812. Site review panels - Members, chairman, quorum, 

meetings, staff. - (1) A site review panel shall be established to insure 

public input in the licensing process and to recommend to the director 

conditions which should be included in the siting license. Such conditions 

may include measures to mitigate public concerns for the following types of 

facilities: 
39-5812 HEALTH AND SAFETY	 92 

(a) All commercial hazardous waste disposal facilities not in existence
 

prior to July 1, 1985;
 

(b) All commercial hazardous waste treatment or storage facilities not in
 

existence prior to July 1, 1985;
 

(c) Anyon-site disposal of wastes listed pursuant to section 20Hd) (2) and 

(e) as modified by section 209 of "The Hazardous and Solid Waste
 

Amendments of 1984," as enacted by the U.S. congress, for sites not in
 

existence prior to July 1, 1985;
 

(d) Any significant expansion of the above-listed facilities after July 1,
 

1985.
 

A panel shall consist of ten (10) members to be appointed as provided in
 

subsections (2) and (3) of this section. 

(2) The following six (6) members shall serve on every panel established 

to review a siting license application: 

(a) Three (3) members shall be representatives of this state, one (1) each
 

from the department of environmental quality, the department of water
 

resources and the Idaho transportation department. A member who is a
 

representative of this state shall be appointed by each of the directors of
 

the respective departments and a vacancy shall be filled as necessary by
 

the appropriate director. A member who is a representative of the state
 

shall be appointed to serve on site review panels for a period of two (2)
 

years 

addition, 

and 

a member 

may be 

who 

appointed 

is a representative 

for additional 

of the 

two (2) 

state may 

year 

serve 

periods. 

beyond
 

In
 

o

the expiration of the member's two (2) year period of service for so long a
 

period of time as is necessary to complete action on siting license
 

applications pending at the expiration of the member's term.
 

(b) Three (3) members shall be public members appointed by the governor
 

with the advice and consent of the senate. One (1) public member shall be
 

a geologist or hydrologist, one (1) an engineer, and one (1) a representative
 

of industries which generate hazardous waste. One (1) public member
 

shall be on the faculty of an institution of higher education in this state.
 

A vacancy shall be filled for the unexpired portion of the period in the
 

same manner as the original appointment. A member who is a public
 

.member shall be appointed to serve on site review panels for a period of
 

three (3) years and may be appointed for additional three (3) year periods.
 

(3) The following four (4) members shall serve on a panel which is 

established to consider a particular siting license application: 

. (a) Two (2)	 members shall be appointed by the city council of the city
 

located closest to or in which the hazardous waste treatment, storage, or
 

disposal facility is proposed to be located, at least one (1) of whom shall be
 

a resident of the city. The members serving pursuant to this subsection
 

shall serve until the particular siting license application subject to their
 

review is approved, or until the application is rejected and is no longer
 

subject to their review.
 

(b) Two (2) members shall be residents of the county where the hazardous 

waste treatment, storage, or disposal facility is proposed to be located and 

shall be appointed by the board of commissioners of the county. The o 

•
 I 
• 93 HAZARDOUS WASTE FACILITY .sITING 39-5813 

members serving pursuant to this subsection shall serve until the 

•
 

particular siting license application subject to their review is approved, or 

until the application is rejected and is no longer subject to their review. 

(4) The member appointed as the representative of the state from the 

department shall be chairman of each panel and shall notify the city council 

of the nearest city and the board of county commissioners of a siting license 

application filed with the department, and shall instruct the city and county 

to appoint the necessary representatives to a panel. The chairman shall be 

a nonvoting member of the panel except when the chairman's vote is 

necessary to break a tie vote. 

(5) Six (6) of the ten (0) members ofthe panel shall constitute a quorum 

for the transaction of business of the panel and the concurrence of six (6) 

members of the panel shall constitute a legal action of the panel. All 

meetings of the panel shall be conducted pursuant to the state open meeting 

law. 

(6) The director shall make staff available to assist a panel in carrying 

out its responsibilities. 

(7) Members of the panel who are not state employees shall be entitled to 

receive compensation as provided in section 59-509(b), Idaho Code. [I.C., 

§ 39-5812, as added by 1985, ch. 113, § 1, p. 220; am. 1987, ch. 103, §. 2, p. 

207; am. 2001, ch. 103, § 53, p. 253.] 

Compiler's Dotes. The Hazardous and Sections 52 and 54 ofS.L. 2001, ch. 103 are 

Solid Waste Amendments of 1984, referred to compiled as §§ 39·5806 and 39-6203, respecin subdivision (l)(c), are compiled as 42 tively. 

U.s.C. § 6901 et seq. 

Section 1 of S.L. 1987, ch. 103 is compiled 

as § 39-5802. 

39-5813. Siting license application - Fee - Rules and regulations. - (1) An application for a siting license shall include: 

(a) The name and residence of the applicant; 

(b) The location of the proposed hazardous waste treatment, storage, or 

disposal facility; 

(c) Engineering or hydrogeologic information to indicate compliance with 

technical criteria as adopted in the hazardous waste management plan if 

applicable; 

(d) A description of the types of wastes proposed to be handled at the 

facility; 

(e) Information showing that harm to scenic, historic, cultural or recreational values is not substantial or can be mitigated; 

(1) Information showing that the risk and impact of accident during 

transport of hazardous waste is not substantial or can be mitigated; and 

(g) Information showing that the impact on local government is not 

adverse regarding health, safety, cost and consistency with local planning 

and existing development or can be mitigated. 

(2) Within thirty (30) days after receipt of the application, the director 

shall determine whether it is complete. If it is not complete, the director 

• 

shall notify the applicant and state the areas of deficiency. 
HEALTH AND SAFETY 94 o 39-5814 

(3) The application shall be accompanied by a siting license fee. The 

director shall establish by rule, the scale for determining the siting license 

application fee. The fee shall not exceed seven thousand five hundred dollars 

($7,500) and shall be based on the cost to the department of reviewing the 

siting license application. The scale shall be based on characteristics 

including the site size, projected waste volume, and hydrogeological characteristics surrounding the site. Fees received pursuant to this section may 

be expended by the director to pay the actual, reasonable and necessary 

costs incurred by the department in acting upon a siting license application. 

The director may promulgate rules and regulations in compliance with 

chapter 52, title 67, Idaho Code, in order to implement and administer the 

provisions ofthis section. [I.C., § 39-5813, as added by 1985, ch. 113, § 1, p. 

220; am. 1987, ch. 103, § 3, p. 207.] 

39-5814. Duties of director upon receipt of a siting license application - Recommendation. - (1) Upon receipt of a complete siting 

license application, the director or an authorized representative of the 

director shall: 

(a) Immediately notify the permanent panel members, the city ancllor
 

county in which the hazardous waste treatment, storage, or disposal
 

facility is located or proposed to be located, the state fire marshal, the
 

director of the department offish and game, the director ofthe Idaho state
 

police, and each division within the department that has responsibility in
 o 

land, air or water management, and other appropriate agencies. The
 

notice shall describe the procedure and the schedule based on the
 

complexity of the application by which the siting license may be approved
 

or denied.
 

(b) Immediately publish a notice that the application has been received,
 

as provided in section 60-109, Idaho Code, in a newspaper having major
 

circulation in the county and the immediate vicinity of the proposed
 

hazardous waste treatment, storage, or disposal facility. The required
 

published notice shall contain a map indicating the location of the
 

proposed hazardous waste treatment, storage, or disposal facility and
 

shall contain a description of the proposed action and the location where
 

the complete application package may be reviewed and where copies may
 

be obtained. The notice shall describe the procedure by which the siting
 

license may be granted.
 

(2) Upon notification by the director, the chairman shall immediately 

notify the representatives of the state to the panel and the public members. 

The chairman shall also notify the applicable county and city for their 

appointment of members as provided in subsection (3) of section 39-5812, 

Idaho Code. Within thirty (30) days after the notification, the board of 

commissioners of the county and the city council shall select the members to 

serve on the panel. The panel shall be created at that time and notification 

of the creation of the panel shall be made to the chairman. 

(3) Iftechnical criteria are not applicable, the director shall submit to the 

panel a draft site license which includes conditions based on the information o 
• 95 HAZARDOUS WASTE FACILITY SITING 39-5814 

submitted in the application. The director shall also recommend to the panel 

that the license be issued or denied. The draft license submittal shall be 

•
 

•
 

made within sixty-five (65) days after a complete application is received. 

(4) If technical criteria as adopted in the hazardous waste management 

plan are applicable, the director shall determine if the proposed facility 

complies with the criteria. Such determination shall be made within 

forty-five (45) days after a complete application is received. If the technical 

criteria are not met, the director shall deny the license and the panel shall 

be disbanded. If the technical criteria are met, the director shall submit to 

the panel a draft site license which includes conditions regarding the 

technical criteria to be met. These conditions may be more stringent than 

those in the plan if warranted by information provided in the application. 

The draft license may also include additional conditions based on the 

information submitted in the application regarding the construction of the 

facility. The director shall also recommend to the panel that the license be 

issued or denied. The denial or draft license submittal shall be made within 

sixty-five (65) days after a complete application is received. The director 

shall immediately notify the applicant and the chairman of the panel of the 

denial or draft license submittal. 

(5) Within ten (10) days after submittal of a draft license, the panel shall 

meet to review and establish a timetable for the consideration of the draft 

site license. 

(6) The panel shall: 

(a) Set a date and arrange for publication of notice of a public hearing in 

a newspaper having major circulation in the vicinity of the proposed site, 

at its first meeting. The public notice shall: 

(i) Contain a map indicating the location of the proposed hazardous 

waste treatment, storage, or disposal facility, a description of the 

proposed action, and the location where the application for a siting 

license may be reviewed and where copies may be obtained; 

(ii) Identify the time, place and location for the public hearing held to 

receive public comment and input on the application for a siting license; 

(b) Publish the notice not less than thirty (30) days before the date of the 

public hearing and the notice shall be, at a minimum, a twenty (20) days' 

notice as provided in section 60-109, Idaho Code. 

(7) Comment and input on the proposed hazardous waste treatment, 

storage, or disposal facility may be presented orally or in writing at the 

public hearing, and shall continue to be accepted in writing by the panel for 

fifteen (15) days after the public hearing date. 

(8) The panel shall consider, among other things: 

(a) The risk and impact of accident during the transportation of hazardous waste; 

(b) The risk of fires or explosions from improper treatment, storage, or 

disposal methods; 

(c) The impact on local units of government where the proposed hazardous waste treatment, storage, or disposal facility is to be located in terms 

of health, safety, cost and consistency with local planning and existing 

development. The panel shall also consider city and county ordinances, 
c 

39-5814 HEALTH AND SAFETY 96 

permits or other requirements and their potential relationship to the 

proposed hazardous waste treatment, storage, or disposal facility; 

(d) The nature of the probable environmental impact. 

(9) The panel's primary responsibility shall be to consider the concerns 

and objections submitted by the public. The panel shall facilitate efforts to 

provide that the concerns and objections are mitigated by proposing additional conditions regarding the construction of the facility. The panel may 

propose conditions which integrate the provisions of the city or county 

ordinances, permits or requirements. 

(0) Within ninety (90) days after creation, the panel shall recommend to 

the director that the license be issued as proposed, issued with different or 

additional conditions, or denied. The director shall make a final decision 

within thirty (30) days after receipt of the panel's recommendation. If the 

panel recommends different or additional conditions, a clear statement of 

the need for the condition must be submitted to the director. If the panel 

recommends denial, a clear statement of the reasons for the denial must be 

submitted to the director. 

(11) The director shall issue a siting license if the director determines 

that: 

(a) The technical criteria are met; 

(b) The harm to scenic, historic, cultural or recreational values is not 

substantial or can be mitigated by appropriate license conditions; 

(c) The risk and impact of accident during transportation of hazardous 

waste is not substantial or can be mitigated with appropriate license 

conditions; 

(d) The impact on local government is not adverse regarding health, 

safety, cost and consistency with local planning and existing development 

or can be mitigated with appropriate license conditions; and 

(e) No other major concerns have been raised by the panel regarding 

public health or the environment which cannot be mitigated by special 

license conditions. 

(12) An applicant denied a siting license pursuant to this chapter or any 

person aggrieved by a decision of the director pursuant to this chapter may 

within twenty-eight (28) days, after all remedies have been exhausted under 

the provisions of this chapter, seek judicial review under the procedures 

provided in chapter 52, title 67, Idaho Code. 

(13) No permit pursuant to section 39-4409, Idaho Code, shall be issued 

unless the applicant has been issued a site license. [I.C., § 39-5814, as 

added by 1985, ch. 113, § 1, p. 220; am. 1987, ch. 103, § 4, p. 207; am. 1993, 

ch.216,§ 29,p. 587; am. 2000, ch. 469,§ 99,p. 1450J 

Compiler's Dotes. Sections 28 and 30 of Sections 98 and 100 of S.L. 2000, ch. 469, 

S.L. 1993, ch. 216 are compiled as §§ 39-4909 are compiled as §§ 39-4410 and 39-6316, reand 41-242, respectively. spectively. 

.:
 

o
 
97 HAZARDOUS WASTE FACILITY SITING 39-5819 

39-5815. Notice for and creation of panel after nonrejection or 

approval of siting license application - Timetable for 

consideration of proposed facility - Public hearingNotice - Comment and input - Municipal impact ­

Considerations - Advice. [Repealed.] 

Compiler's notes. This section, which ch. 113, § 1, p. 220, was repealed by S.L. 

comprised I.C., § 39·5815, as added by 1985, 1987, ch. 103, § 5. 

39-5816. Local restrictions on hazardous waste treatment, storage, or disposal facility construction. - An ordinance, permit requirement or other requirement of a city or county shall not prohibit the 

construction of a hazardous waste treatment, storage, or disposal facility in 

that city or county. [LC., § 39-5816, as added by 1985, ch. 113, § 1, p. 220.] 

39-5817. Coordination and integration with state and federal 

law. - The director shall coordinate and integrate the provisions of this 

chapter for purposes of administration and enforcement with appropriate 

state and federal law. [l.C., § 39-5817, as added by 1985, ch. 113, § 1, p. 

220.] 

39-5818. Information obtained - Public record. - (1) Except as 

• 

provided in subsection (2) of this section, information obtained by the 

department under the provisions of this chapter shall be deemed to be a 

public record. "1 

(2) A person regulated under the provisions of this chapter may designate 

a record, site license application, other information, or a portion of a record, 

site license application, or other information furnished to or obtained by the 

department or its agents, as being only for the use of the department and the 

panel. The material shall then be subject to disclosure according to chapter 

3, title 9, Idaho Code. [I.C., § 39-5818, as added by 1985, ch. 113, § 1, p. 220; 

am. 1990, ch. 213, § 49, p. 480.] 

Compiler's notes. Sections 48 and 50 of vided that §§ 3 through 45 and 48 through 

S.L 1990, ch. 213 are compiled as §§ 39-5403 110 of the act should take effect July I, 1993 

and 39·6208, respectively. and that §§ 1,2,46 and 47 take effect July I, 

Section 111 of S.L. 1990, ch. 213 as 1990. 

amended by § 16 of S.L. 1991, ch. 329 pro39-5819. Certification of city, county, or district health departments. - The department may certify a city, county or health district to 

administer and enforce portions of this chapter and chapter 44, title 39, 

Idaho Code, but only to the extent consistent with obtaining and maintaining authorization of the state's hazardous waste management program 

pursuant to section 3006 of title II of the solid waste disposal act. Certification procedures shall be established by the department by rule [rules] and 

regulations. The director may rescind certification upon the request of the 

certified city, county, or health district, or after reasonable notice and 

hearing, if the director finds that a city, county, or health district is not 

• 

administering and enforcing the provisions of this chapter or chapter 44, 
39-5820 HEALTH AND SAFETY 98 

title 39, Idaho Code, or both, as required. [I.C., § 39-5819, as added by 1985, 

ch. 113, § 1, p. 220.] 

Compiler's notes. The bracketed word 

"rules" was inserted by the compiler. 

39-5820. Remedy for devaluation of property caused by approved facility. - (1) Before construction of a hazardous waste treatment, 

storage, or disposal facility, but in no case later than nine (9) months after 

approval of a site license for a hazardous waste treatment, storage, or 

disposal facility, any owner or user of real property adversely affected by 

approval may bring an action in a district court of competent jurisdiction 

against the owner of the proposed facility. If the court determines that the 

planned construction and operation of the hazardous waste treatment, 

storage, or disposal facility will result in the devaluation of the plaintiff's 

property or will otherwise interfere with the plaintiff's rights in the 

property, it shall order the owner to compensate the plaintiff in an amount 

equal to the value of the plaintiff's loss. 

(2) The remedy provided in subsection (1) of this section shall be in 

addition to other remedies provided by law for owners or users aggrieved by 

the proposed construction and operation of a hazardous waste treatment, 

storage, or disposal facility. 

(3) Nothing in this chapter shall prevent an owner or user of property () aggrieved by the construction and operation of a facility from seeking 

damages that result from a subsequent modification of the design or 

operation of a facility but such damages are limited to the incremental 

damage that results from the modification. Any action for such damages 

under this section shall be brought within nine (9) months after the siting 

license modification of the design or operation of the facility is approved. 

(4) For the purpose of assessing damages, the value of the rights affected 

is fixed at the date the siting license is approved and the actual value of the 

right at that date is the basis for the determination of the amount of damage. 

suffered, and no improvements to the property subsequent to the date of 

approval of the plans shall be included in the assessment of damages. 

Similiarly, for any subsequent modification of a facility, value is fixed at the 

date of approval of the siting license. 

(5) The owner or operator of a proposed facility may, at any time before an 

award of damages, abandon the construction or operation of the facility or 

any modification and cause the action to be dismissed. As a condition of 

dismissal, however, the owner or operator shall compensate the plaintifffor 

any actual damage sustained as a result of construction or operation of the 

facility before abandonment together with court costs and a reasonable 

attorney's fee. 

(6) Nothing in this chapter shall prevent a court from enjoining any 

activity at a hazardous waste treatment, storage, or disposal facility that is 

outside of, or not in compliance with, the terms and conditions of an 

approved hazardous waste operations permit pursuant to section 39-4409, 

Idaho Code. [I.e., § 39-5820, as added by 1985, ch. 113, § 1, p. 220.] o 
• 2002
 

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POCKET SUPPLEMENT
 

IDAHO CODE
 

Compiled Under the Supervision of the
 

Idaho Code Commission
 

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THOMAS A. MILLER RICHARD F. GOODSON
 

COMMISSIONERS
 

MAX M. SHEILS, JR.
 

EXECUTIVE SECRETARY
 

• 

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PUBLISHER'S NOTE 

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

bound volume down to and including the 2002 regular session are compiled 

in this supplement and will be found under their appropriate section 

numbers. 

To better serve our customers, by making our annotations more current, 

LexisNexis has changed the sources that are read to create annotations for 

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courts. A consequence of this more current reading of cases, as they are 

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available, through later publications. 

This publication contains annotations taken from decisions of the Idaho 

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courts, posted on lexis.com as of March 19,2002. These cases will be printed 

in the following reports: 

Pacific Reporter, 3rd Series 

Federal Supplement, 2nd Series 

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

Additionally, annotations have been taken from the following sources: 

American Law Reports, 5th Series, through Volume 93 

American Law Reports, Federal Series, through Volume 173 

Opinions of the Attorney General 2001-3 

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

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LR.C.P. Idaho Rules of Civil Procedure 

LR.E. Idaho Rules of Evidence 

LC.R. Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

LLR. Idaho Infraction Rules 

LJ.R. Idaho Juvenile Rules 

LC.A.R. Idaho Court Administrative Rules 

LA.R. Idaho Appellate Rules 

• 

111 
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•
 

TITLE 9 

EVIDENCE 

CHAPTER. 

3.	 PuBLIC WRITINGS, §§ 9-335, 9-337 - 9-343, 

9-346 - 9-348. 

CHAPTER 2 

WITNESSES 

9-202. Who may not testify. 

Communications with Deceased Persons memorandum, but not to the specific commuPrior to Death. nications made by the deceased. Simons v. 

Testimony was allowed where the wit­ Simons, 134 Idaho 824, 11 P.3d 20 (2000). nesses testified as to the contents of a written 

9-203. Confidential relations and communications. 

•
 

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

in §§ 39-1310,39-2407, 54-3410A. 

Collateral References. Waiver of 

evidentiary privilege by inadvertent disclo9·204. Judge or juror may testify. 

Cited in: State v. Camp, 134 Idaho 662, 8 

P.3d 657 (Ct. App. 2000). 

sure-federal law. 159 AL.R. Fed. 153. 

Views of United States Supreme Court as to 

attorney-client privilege. 159 AL.R. Fed. 243. 

CHAPTER 3 

PUBLIC WRITINGS 

SECTION. 

9-335. Exemptions from disclosure - Confidentiality. 

9-337. Definitions. 

9-338. Public records - Right to examine. 

9-339. Response to request for examination 

of public records. 

9-340. [Repealed.) 

9-340A Records exempt from disclosure ­

Exemptions in federal or state 

law - Court files of judicial 

proceedings. 

9·340B. Records exempt from disclosure ­

Law enforcement records, investigatory records of agencies, evacuation and emergency response plans, 

worker's compensation. 

9-340C. Records exempt from disclosure ­

Personnel records, personal 

information, health records, 

professional discipline. [Effective until January 1, 2003.) 

SECTION. 

9-340C. Records exempt from disclosure ­

Personnel records, personal 

information, health records, 

professional discipline. [Effective January 1, 2003 until 

January 1, 2008.) 

9-340D. Records exempt from disclosure ­

Trade secrets, production 

records, appraisals, bids, proprietary information. 

9-340E. Exemptions from disclosure - Archaeological, endangered species, libraries, licensing exams. 

9-340F. Records exempt from disclosure ­

Draft legislation and supporting materials, tax commission, 

petroleum clean water trust 

fund. 

9-340G. Exemption from disclosure 

Records of court proceedings 

97 • 
c 9-315 EVIDENCE 98 

SECTION. 

regarding judicial authorization of abortion procedures for 

minors. 

[9-340H]. [Repealed.] 

9-341. Exempt and nonexempt public records
 

to be separated.
 

9-342. Access to records about a person by a
 

person. 

9-342A. Access to air quality and hazardous 

waste records - Protection of 

trade secrets. 

SECTION. 

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

records - Retention of disputed records. 

9-346. Immunity. 

9-347. Agency guidelines. 

9-348. Prohibition on distribution or sale of 

mailing or telephone number 

lists - Penalty. 

9-315. Proof of other official documents. 

Fingerprint Cards. 

Although the district court erred in admitting the fingerprint cards over defendant's 

objection for a lack offoundation, where there 

was a multitude of other sources of information from which the jury would have come to 

the same conclusion regarding defendant's 

guilt, the admission of the fingerprint evidence was harmless. State v. Norton, 134 

Idaho 875, 11 P.3d 494 (Ct. App. 2000). 

9-335. Exemptions from disclosure - Confidentiality. - (1) Notwithstanding any statute or rule of court to the contrary, nothing in this 

chapter nor chapter 10, title 59, Idaho Code, shall be construed to require 

disclosure of investigatory records compiled for law enforcement purposes 

by a law enforcement agency, but such exemption from disclosure applies 

only to the extent that the production of such records would: 

(a) Interfere with enforcement proceedings; o 

(b) Deprive a person of a right to a fair trial or an impartial adjudication; 

(c) Constitute an unwarranted invasion of personal privacy; 

(d) Disclose the identity of a confidential source and, in the case of a
 

record compiled by a criminal law enforcement agency in the course of a
 

criminal investigation, confidential information furnished only by the
 

confidential source;
 

(e) Disclose investigative techniques and procedures; or 

(f) Endanger the life or physical safety of law enforcement personnel. 

(2) An inactive investigatory record shall be disclosed unless the disclosure would violate the provisions of subsection (Dta) through (f) of this 

section. Investigatory record as used herein means information with respect 

to an identifiable person or group of persons compiled by a law enforcement 

agency in the course of conducting an investigation of a specific act or 

omission and shall not include the following information: 

(a) The time, date, location, and nature and description of a reported
 

crime, accident or incident;
 

(b) The name, sex, age, and address of a person arrested, except as
 

otherwise provided by law;
 

(c) The time, date, and location of the incident and of the arrest; 

(d) The crime charged; 

(e) Documents given or required by law to be given to the person arrested; 

(f) Informations and indictments except as otherwise provided by law;
 

and
 

(g) Criminal history reports. o 
9-336 • 99 PUBLIC WRITINGS 

As used herein, the term "law enforcement agency" means the office of 

.the attorney general, the office of the state controller, the Idaho state 

police, the office of any prosecuting attorney, sheriff or municipal police 

department. 

(3) Whenever it is made to appear by verified petition to the district court 

of the county where the records or some part thereof are situated that 

certain investigative records are being improperly withheld from a member 

of the public, the court shall order the officer or person charged with 

withholding the records to disclose the investigative record or show cause 

why he should not do so. The court shall decide the case after examining the 

record in camera, papers filed by the parties, and such oral argument and 

additional evidence as the court may allow. 

• 

If the court finds that the public official's decision to refuse disclosure is 

not justified, he shall order the public officials to make the record public. If 

the judge determines that the public official was justified in refusing to 

make the record public, he shall return the item to the public official without 

disclosing its content with an order supporting the decision refusing 

disclosure. Any person who fails to obey the order of the court shall be cited 

to show cause why he is not in contempt of court. The court may, in its 

discretion, award costs and fees to the prevailing party. [I.e., § 9-335, as 

added by 1986, ch. 210, § 1, p. 543; am. 1994, ch. 181, § 40, p. 575; am. 

2000, ch. 469, § 18, p. 1450.] 

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

in §§ 9-340B, 9-340D, 9-343 and 63-3077. 

9-336. Evidence from preliminary hearing - Admission - Requirements. 

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

in § 63-3077. 

. ANALYSIS 

Preliminary hearing testimony.
 

-Absent witness.
 

- Admissibility.
 

Standard of review.
 

Preliminary Hearing Testimony.
 

-Absent Witness.
 

The trial court erred in finding a witness 

unavailable and his preliminary hearing testimony admissible where the state failed to 

use diligent and good faith efforts to locate 

and secure a witness' attendance at trial 

since, after mailing a subpoena to the witness 

and receiving the receipt, the prosecution lost 

track of him,· and made no effort to use the 

procedure set forth in section 19-31)05(2) to 

secure the attendance of the witness. State v, 

Cross, 132 Idaho 667, 978 P.2d 227 (1999). 

• 

-Admissibility. 

The trial court erred in ruling that the 

jailed witness who refused to testify was in 

fact an unavailable witness without first 

bringing him back into court and ordering 

him to testify under the direct threat of contempt; therefore, the witness was not an unavailable witness as defined by subsection 

(a)(2) and the admission of his preliminary 

hearing testimony was error. State v. 

Barcella, 135 Idaho 191, 16 P.3d 288 (Ct. App. 

2000). 

Standard of Review. 

The basis of defendant's objection to the 

admission of preliminary hearing testimony, 

while not set forth specifically as required by 

I.R.E. 103(a)(l), appeared to be under this 

section, and the trial court's ruling therefore 

would not be disturbed unless clearly erroneous. State v. Cross, 132 Idaho 667, 978 P.2d 

227 (1999). 
9-337 EVIDENCE 100 o

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

Code: 

(1) "Copy" means transcribing by handwriting, photocopying, duplicating 

machine and reproducing by any other means so long as the public record is 

not altered or damaged. 

(2) "Custodian" means the person having personal custody and control of 

the public records in question. If no such designation is made by the public 

agency or independent public body corporate and politic, then custodian 

means any public official having custody of, control of, or authorized access 

to public records and includes all delegates of such officials, employees or 

representatives. 

(3) "Independent public body corporate and politic" means the Idaho 

housing and finance association as created in chapter 62, title 67, Idaho 

Code. 

(4) "Inspect" means the right to listen, view and make notes of public 

records as long as the public record is not altered or damaged. 

(5) "Investigatory record" means information with respect to an identifiable person, group of persons or entities compiled by a public agency or 

independent public body corporate and politic pursuant to its statutory 

authority in the course of investigating a specific act, omission, failure to 

act, or other conduct over which the public agency or independent public 

body corporate and politic has regulatory authority or law enforcement 

authority. 

(6) "Law enforcement agency" means any state or local agency given law 

enforcement powers or which has authority to investigate, enforce, prosecute or punish violations of state or federal criminal statutes, ordinances or 

regulations. 

(7) "Local agency" means a county, city, school district, municipal corporation, district, public health district, political subdivision, or any agency 

thereof, or any committee of a local agency, or any combination thereof. 

(8) "Person" means any natural person, corporation, partnership, firm, 

association, joint venture, state or local agency or any other recognized legal 

entity. 

(9) "Prisoner" means a person who has been convicted of a crime and is 

either incarcerated or on parole for that crime or who is being held in 

custody for trial or sentencing. 

[(10)](9) "Public agency" means any state or local agency as defined in 

this section. 

[(11)](10) "Public official" means any state, county, local district, independent public body corporate and politic or governmental official or employee, 

whether elected, appointed or hired. 

[(12)](11) "Public record" includes, but is not limited to, any writing 

containing information relating to the conduct or administration of the 

public's business prepared, owned, used or retained by any state agency, 

independent public body corporate and politic or local agency regardless of 

physical form or characteristics. 

[(13)](12) "State agency" means every state officer, department, division, 

bureau, commission and board or any committee of a state agency including 

those in the legislative or judicial branch, except the state militia. o 
9-338 • 101 PUBLIC WRITINGS
 

[(14)](13) "Writing" includes, but is not limited to, handwriting, typewrit­


ing, printing, photostating, photographing and every means of recording, 

including letters, words, pictures, sounds or symbols or combination thereof, 

and all papers, maps, magnetic or paper tapes, photographic films and 

prints, magnetic or punched cards, discs, drums or other documents. [I.C., 

§ 9-337, as added by 1990, ch. 213, § 1, p. 480; am. 2000, ch. 342, § 1, p. 

1146; am. 2000, ch. 368, § 1, p. 1219.] 

Compiler's notes. This section was 

amended by two 2000 acts - ch. 342, § 1, and 

ch. 368, § 1, both effective July 1,2000, which 

do not conflict and have been compiled together. 

The 2000 amendment by ch. 342, § 1, inserted "or independent public body corporate 

and politic" once in subsections (2) and (10) 

and twice in subsection (5); added subsection 

(3); redesignated subsections (4) through (12) 

as (5) through (13) (now [(14)](13)); in subsection (5) inserted "over" following "or other 

conduct", and deleted "over" at the end. 

The 2000 amendment by ch. 368, § 1, 

added subsection (8); and redesignated subsections (9) through (12) as (10) through (13) 

(now [(11)](10) through [(14»)(13). 

The bracketed subsection designations 

[(10)] through [(14)] were inserted by the 

compiler. 

Section 2 of S.L. 2000, ch. 368, is compiled 

as § 9-342. 

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

in §§ 9-340B, 9-343, 40-1306C, 63-3077 and 

67-5241. 

Sections 9-337 - 9-347 are referred to in 

§§ 9-343, 67-5241, 67c5711C and 67-5711D. 

• 

9-338. Public records - Right to examine. - (1) Every person has 

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

there is a presumption that all public records in Idaho are open at all 

reasonable times for inspection except as otherwise expressly provided by 

statute. 

(2) The right to copy public records shall include the right to make 

photographs or photographic or other copies while the records are in the 

possession of the custodian of the records using equipment provided by the 

public agency or independent public body corporate and politic or using 

equipment designated by the custodian. 

(3) Additionally, the custodian of any public record shall give the person, 

on demand, a certified copy of it if the record is of a nature permitting such 

copying or shall furnish reasonable opportunity to inspect or copy such 

record. 

(4) The custodian shall make no inquiry of any person who applies for a 

public record, except to verify the identity of a person requesting a record in 

accordance with section 9-342, Idaho Code, to ensure that the requested 

record or information will not be used for purposes of a mailing or telephone 

list prohibited by section 9-348, Idaho Code, or as otherwise provided by law. 

The person may be required to make a written request and provide their 

name, a mailing address and telephone number. [The custodian shall make 

no inquiry of any person who applies for a public record, except that the 

person may be required to make a written request and provide a mailing 

address and telephone number, and except as required for purposes of 

protecting personal information from disclosure under chapter 2, title 49, 

Idaho Code, and federal law.] 

• 

(5) The custodian shall not review, examine or scrutinize any copy, 

photograph or memoranda in the possession of any such person and shall 
C) 9-338 EVIDENCE 102 

extend to the person all reasonable comfort and facility for the full exercise 

of the right granted under this act. 

(6) Nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any public record 

while it is being examined. 

(7) Examination of public records under the authority of this section must 

be conducted during regular office or working hours unless the custodian 

shall authorize exaniination of records in other than regular office or 

working hours. In this event, the persons designated to represent the 

custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public agency or independent public body 

corporate and politic having custody of such records, out of funds provided 

in advance by the person: examining such records, at other than regular 

office or working hours. 

(8)(a) A public agency or independent public body corporate and politic or
 

public official may establish a copying fee schedule. The fee may not
 

exceed the actual cost to the agency of copying the record if another fee is
 

not otherwise provided by law. The actual cost shall not include any
 

administrative or labor costs resulting from locating and providing a copy
 

of the public record; provided however, that a public agency or indepen­


dent public body corporate and politic or public official may establish a fee
 

to recover the actual labor cost associated with locating and copying
 

documents if:
 

(i) The request is for more than one hundred (l00) pages of paper C) records; or 

(ii) The request includes records from which nonpublic information
 

must be deleted; or
 

(iii) The actual labor associated with locating and copying documents
 

for a request exceeds two (2) person hours.
 

(b) For providing a duplicate of a computer tape, computer disc, microfilm
 

or similar or analogous record system containing public record informa­


tion, a public agency or independent public body corporate and politic or
 

public official may charge a fee, uniform to all persons that does not
 

exceed the sum of the following:
 

(i) The agency's direct cost of copying the information in that form; 

(ii) The standard cost, if any, for selling the same information in the 

form of a publication.
 

The custodian may require advance payment of the cost of copying. Any
 

money received by the public agency or independent public body corporate
 

and politic shall be credited to the account for which the expense being
 

reimbursed was or will be charged, and such funds may be expended by
 

the agency as part of its appropriation from that fund.
 

(c) The public agency or independent public body corporate and politic
 

may not charge any cost or fee for copies or labor when the requester
 

demonstrates either:
 

(i) The inability to pay; or 

(ii) That the public's interest or the public's understanding of the
 

operations or activities of government or its records would suffer by the
 

assessment or collection of any fee.
 
9-339 • 103 PUBLIC WRITINGS 

(9) A public agency or independent public body corporate and politic shall 

not prevent the examination or copying of a public record by contracting 

with a nongovernmental body to perform any of its duties or functions. 

(10) Nothing contained herein shall prevent a public agency or independent public body corporate and politic from disclosing statistical information 

that is not descriptive of an identifiable person or persons. [I.C., § 9-338, as 

added by 1990, ch. 213, § 1, p. 480; am. 1997, ch. 80, § 1, p. 165; am. 1997, 

ch. 152, § 1, p. 432; am. 2000, ch. 342, § 2, p. 1146.] 

Sec. to sec. ref. Sections 9-335 through 

9-348 are referred to in § 63-3077. 

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

• 

(1) A public agency or independent public body corporate and politic shall 

either grant or deny a person's request to examine or copy public records 

within three (3) working days of the date of the receipt of the request for 

examination or copying. If it is determined by employees of the public 

agency or independent public body corporate and politic that a longer period 

of time is needed to locate or retrieve the public records, the public agency 

or independent public body corporate and politic shall so notify in writing 

the person requesting to examine or copy the records and shall provide the 

public records to the person no later than ten (10) working days following 

the person's request. 

(2) If the public agency or independent public body corporate and politic 

fails to respond, the request shall be deemed to be denied within ten (10) 

working days following the request. 

(3) If the public agency or independent public body corporate and politic 

denies the person's request for examination or copying the public records or 

denies in part and grants in part the person's request for examination and 

copying of the public records, the person legally responsible for administering the public agency or independent public body corporate and politic or 

that person's designee shall notify the person in writing of the denial or 

partial denial of the request for the public record. 

(4) The notice of denial or partial denial shall state that the attorney for 

the public agency or independent public body corporate and politic has 

reviewed the request or shall state that the public agency or independent 

public body corporate and politic has had an opportunity to consult with an 

attorney regarding the request for examination or copying of a record and 

has chosen not to do so. The notice of denial or partial denial also shall 

indicate the statutory authority for the denial and indicate clearly the 

person's right to appeal the denial or partial denial and the time periods for 

doing so. [I.C., § 9-339, as added by 1990, ch. 213, § 1, p. 480; am. 2000, ch. 

342, § 3, p. 1146.] 

Compiler's notes. Section 4 of S.L. 2000, Sec. to sec. ref. Sections 9-335 through 

ch. 342, is compiled as § 9-340B. 9-348 are referred to in § 63-3077. 

•
 
9-340 EVIDENCE 104 (~)

9-340. Records exempt from disclosure. [Repealed.] 

Compiler's notes. This section which com­ am. 1998, ch. 411, § 4, p. 1275, was repealed 

prised I.C., § 9·340, as added by 1997, ch. 60, by S.L. 1999, ch. 30, § 1, p. 41, effective July 

§ 2,p. 111; am. 1998,ch. 164,§ 1,p. 552; am. 1,1999. 

1998, ch. 262, § 1, p. 865; am. 1998, ch. 293, Sec. to sec. ref. This section is referred to 

§ 1, p. 968; am. 1998, ch. 308, § 1, p. 1012; in § 18·8315. 

9-340A. Records exempt from disclosure -.,. Exemptions in federal or state law - Court files of judicial proceedings. - The 

following records are exempt from disclosure: 

(1) Any public record exempt from disclosure by federal or state law or 

federal regulations to the extent specifically provided for by such law or 

regulation. 

(2) Records contained in court files ofjudicial proceedings, the disclosure 

of which is prohibited by or under rules adopted by the Idaho supreme court, 

but only to the extent that confidentiality is provided under such rules, and 

any drafts or other working memoranda related to judicial decision-making, 

provided the provisions of this subsection making records exempt from 

disclosure shall not apply to the extent that such records or information 

contained in those records are necessary for a background check on an 

individual that is required by federal law regulating the sale of firearms, 

guns or ammunition. [I.C., § 9-340A, as added by 1999, ch. 30, § 2, p. 41.] 

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

in § 48·1509. o 

9-340B. Records exempt from disclosure - Law enforcement 

records, investigatory records of agencies, evacuation and emergency response plans, worker's compensation. - The following 

records are exempt from disclosure: 

(1) Investigatory records of a law enforcement agency, as defined in 

section 9-337(6), Idaho Code, under the conditions set forth in section 9-335, 

Idaho Code. 

(2) Juvenile records of a person maintained pursuant to chapter 5, title 

20, Idaho Code, except that facts contained in such records shall be 

furnished upon request in a manner determined by the court to persons and 

governmental and private agencies and institutions conducting pertinent 

research studies or having a legitimate interest in the protection, welfare 

and treatment of the juvenile who is thirteen (13) years of age or younger. If 

the juvenile is petitioned or charged with an offense which would be a 

criminal offense if committed by an adult, the name, offense of which the 

juvenile was petitioned or charged and disposition of the court shall be 

subject to disclosure as provided in section 20·525, Idaho Code. Additionally, 

facts contained in any records of a juvenile maintained under chapter 5, title 

20, Idaho Code, shall be furnished upon request to any school district where 

the juvenile is enrolled or is seeking enrollment. 

(3)(a) The following records of the department of correction: 

(i) Records of'which the public interest in confidentiality, public safety, 

security and habilitation clearly outweighs the public interest in o 
• 105 PUBLIC WRITINGS 9-340B 

disclosure as identified pursuant to the authority of the Idaho board of 

•
 

correction under section 20-212, Idaho Code; 

(ii) Records that contain any identifying information, or any information that would lead to the identification of any victims or witnesses; 

(iii) Records that reflect future transportation or movement of a prisoner; 

(iv) Records gathered during the course of the presentence investigation; 

(v) Records of a prisoner, as defined in section 9-337(9), Idaho Code, or 

probationer shall not be disclosed to any other prisoner or probationer. 

(b) Records of buildings, facilities, infrastructures and systems held by or 

in the custody of any public agency only when the disclosure of such 

information would jeopardize the safety of persons. or the public safety. 

Such records may include emergency evacuation, escape or other emergency response plans, vulnerability assessments, operation and security 

manuals, plans, blueprints or security codes. For purposes of this section 

"system" shall mean electrical, heating, ventilation, air conditioning and 

telecommunication systems. 

(c) Records of the commission of pardons and parole shall be exempt from 

public disclosure pursuant to section 2O-213A, Idaho Code, and section 

20-223, Idaho Code. Records exempt from disclosure shall also include 

those containing the names, addresses and written statements of victims. 

(4) Voting records of the sexual offender classification board. In accordance with section 18-8315, Idaho Code, the written record of the vote to 

classify an offender as a violent sexual predator by each board member in 

each case reviewed by that board member shall be exempt from disclosure 

to the public and shall be made available upon request only to the governor, 

the chairman of the senate judiciary and rules committee, and the chairman 

of the house of representatives judiciary, rules and administration committee, for all lawful purposes. 

(5) Records of the sheriff or Idaho state police received or maintained 

pursuant to section 18-3302, Idaho Code, relating to an applicant or 

licensee. 

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

welfare pursuant to its statutory responsibilities dealing with the protection 

of children, the rehabilitation of youth, adoptions and the commitment of 

mentally ill persons. 

(7) Records including, but not limited to, investigative reports, resulting 

from investigations conducted into complaints of discrimination made to the 

Idaho human rights commission unless the public interest in allowing 

inspection and copying of such records outweighs the legitimate public or 

private interest in maintaining confidentiality of such records. A person may 

inspect and copy documents from an investigative file to which he or she is 

a named party if such documents are not otherwise prohibited from 

disclosure by federal law or regulation or state law. The confidentiality of 

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

proceeding brought by a named party to the complaint or investigation, or 

by the Idaho human rights commission, relating to the complaint of 

• 

discrimination. 
9-340B EVIDENCE 106 ..

(8) Records containing information obtained by the manager of the Idaho 

state insurance fund pursuant to chapter 9, title 72, Idaho Code, from or on 

behalf of employers or employees contained in underwriting and claims for 

benefits files. 

(9) The worker's compensation records of the Idaho industrial commission provided that the industrial commission shall make such records 

available: 

(a) To the parties in any worker's compensation claim and to the
 

industrial special indemnity fund of the state of Idaho; or
 

(b) To employers and prospective employers subject to the provisions of
 

the Americans with disabilities act, 42 U.S.C. 12112, or other statutory
 

limitations, who certify that the information is being requested with
 

respect to a worker to whom the employer has extended an offer of
 

employment and will be used in accordance with the provisions of the
 

Americans with disabilities act, 42 U.S.C. 12112, or other statutory
 

limitations; or
 

(c) To employers and prospective employers not subject to the provisions
 

ofthe Americans with disabilities act, 42 U.S.C. 12112, or other statutory
 

limitations, provided the employer presents a written authorization from
 

the person to whom the records pertain; or
 

(d) To others who demonstrate that the public interest in allowing
 

inspection and copying of such records outweighs the public or private
 

interest in maintaining the confidentiality of such records, as determined
 

by a civil court of competent jurisdiction.
 o 

(10) Records of investigations compiled by the commission on aging 

involving vulnerable adults, as defined in section 18-1505, Idaho Code, 

alleged to be abused, neglected or exploited. 

(11) Criminal history records and fingerprints, as defined by section 

67-3001, Idaho Code, and compiled by the Idaho state police. Such records 

shall be released only in accordance with chapter 30, title 67, Idaho Code. 

(12) Records furnished or obtained pursuant to section 41-1019, Idaho 

Code, regarding termination of an appointment, employment, contract or 

other insurance business relationship between an insurer and a producer. 

(13) Records of a prisoner or former prisoner in the custody of any state 

or local correctional facility, when the request is made by another prisoner 

in the custody of any state or local correctional facility. 

(14) Except as provided in section 72-1007, Idaho Code; records of the 

Idaho industrial commission relating to compensation for crime victims 

under chapter 10, title 72, Idaho Code. [I.C., § 9-340B, as added by 1999, ch. 

30,§ 3,p. 41; am. 1999,ch. 249,§ 3,p. 638; am. 1999,ch. 308, § 1,p. 765; 

am. 2000, ch. 57, § 1, p. 120; am. 2000, ch. 342, § 4, p. 1146; am. 2000, ch. 

367, § 1,p. 1216; am. 2000, ch. 469, § 19,p. 1450; am. 2001, ch. 48, § 1,p. 

88;am.2001,ch. 180,§ 1,p. 606; am. 2001,ch. 296,§ 1,p. 1044; am. 2002, 

ch. 62, § 1, p. 132; am. 2002, ch. 136, § 1, p. 371.] 

Compiler's notes. This section was en­ July I, 1999, which do not conflict and have 

acted by S.L. 1999, ch. 30, § 3, effective July been compiled together. 

1, 1999, and also amended by two 1999 acts, The amendment by ch. 249 added subsecch. 249, § 3, and ch. 308, § 1, both effective tion (11). o 
• 107 PUBLIC WRITINGS 9-340C 

The amendment by ch. 308 added subdivi­ This section was amended by three 2001 

sion (3)(b). acts which appear to be compatible and have 

This section was amended by four 2000 acts been compiled together. 

- ch. 57, § 1, ch. 342, § 4, ch. 367, § 1 and The amendment by ch. 48, § 1, added sub­


ch. 469, § 19, all effective July 1,2000, which section [13](12).
 do not conflict and have been compiled to­
 The amendment by ch. 180, § 1, rewrote 

gether. subsection (3)(a)' and added subsections 

The 2000 amendment by ch. 57, § 1, in the (3)(a)(i) through (3)(a)(v); inserted ", visitors first sentence of subdivision (3)(b), inserted or prisoners" in subsection (b). "and security" following "Operation", inserted The amendment by ch. 296, § 1, added "plans or codes" preceding "of county jails", subsection (12). and inserted "and buildings owned or leased This section was amended by two 2002 acts by Idaho state government, a county or a - ch. 62, § 1 and ch. 136, § 1, both effective city"; in the second sentence of subdivision 

July 1, 2002, which appear to be compatible (3)(b), inserted "state government agency" fol­ and have been compiled together. lowing "documents of any", and inserted "or
 

city building or" preceding "jail that define", The 2002 amendment by ch. 62 inserted
 

inserted "building or" preceding "jail", and "evacuation and emergency response plans"
 

added the last sentence in subdivision (3)(b). in the section heading and rewrote subdivi­


The 2000 amendment by ch. 342, § 4, sub­ sion (3)(b). 

stituted "9-337(6)" for "9-337(5)" in subdivi­ The 2002 amendment by ch. 136 added 

sion (1). subdivision (14). 

The 2000 amendment by ch. 367, § 1, in the Sections 2 and 4 of S.L. 1999, ch. 249, are 

first sentence of subdivision (3)(a), added "Un­ compiled as §§ 67-3001 through 67-3011 and 

til July 1, 2001" at the beginning, made a 18-8306, respectively. minor stylistic change, deleted "or the com­ Section 3 of S.L. 2000, ch. 342, is compiled mission of pardons and parole" following "de­ as § 9-339. 

partment of correction" near the beginning, Section 18 ofS.L. 2000, ch. 469, is compiled deleted "or on parole" following "the depart­

• as § 9-335. ment of correction" near the middle, and de­ Section 2 ofS.L. 2001, ch. 48, is compiled as leted "or the commission of pardons and pa­ § 9-342. role" preceding "if the public interest"; and 

added subdivision (3)(c). Section 2 of S.L. 2002, ch. 136 is compiled 

The 2000 amendment by ch. 469, § 19, as § 72-1003. 

substituted "Idaho state police" for "depart-' Section 2 of S.L. 2000, ch. 57 provided that 

ment of law enforcement" in subdivisions (5) the act shall be in full force and effect on and 

and (11). after July 1, 2000. 

9·340C. Records exempt from disclosure - Personnel records, 

personal information, health records, professional discipline. [Ef· 

fective until January 1, 2003.] - The following records are exempt from 

disclosure: 

(1) Except as provided in this subsection, all personnel records of a 

current or former public official other than the public official's public service 

or employment history, classification, pay grade and step, longevity, gross 

salary and salary history, status, workplace and employing agency. All other 

personnel information relating to a public employee or applicant including, 

but not limited to, information regarding sex, race, marital status, birth 

date, home address and telephone number, applications, testing and scoring 

materials, grievances, correspondence and performance evaluations, shall 

not be disclosed to the public without the employee's or applicant's written 

consent. A public official or authorized representative may inspect and copy 

his personnel records, except for material used to screen and test for 

employment. . 

• 

(2) Retired employees' and retired public officials' home addresses, home 

telephone numbers and other financial and nonfinancial membership 

records; active and inactive member financial and membership records and 

mortgage portfolio loan documents maintained by the public employee 
9-340C EVIDENCE 108 

retirement system. Financial statements prepared by retirement system 

staff, funding agents and custodians concerning the investment of assets of 

the public employee retirement system of Idaho are not considered confidential under this chapter. 

(3) Information and records submitted to the Idaho state lottery for the 

performance of background investigations of employees, lottery retailers 

and major procurement contractors; audit records of lottery retailers, 

vendors and major procurement contractors submitted to or performed by 

the Idaho state lottery; validation and security tests of the state lottery for 

lottery games; business records and information submitted pursuant to 

sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such 

documents and information obtained and held for the purposes of lottery 

security and investigative action as determined by lottery rules unless the 

public interest in disclosure substantially outweighs the private need for 

protection from public disclosure. 

(4) Records of a personal nature as follows: 

(a) Records of personal debt filed with a public agency or independent 

public body corporate and politic pursuant to law; 

(b) Personal bank records compiled by a public depositor for the purpose 

of public funds transactions conducted pursuant to law; 

(c) Records of ownership of financial obligations and instruments of a 

public agency or independent public body corporate and politic, such as 

bonds, compiled by the public agency or independent public body corporate and politic pursuant to law; 

(d) Records, with regard to the ownership of, or security interests in, 

registered public obligations; 

(e) Vital statistics records. 

(5) Information in an income or other tax return measured by items of 

income or sales, which is gathered by a public agency for the purpose of 

administering the tax, except such information to the extent disclosed in a 

written decision of the tax commission pursuant to a taxpayer protest of a 

deficiency determination by the' tax commission, under the provisions of 

section 63-3045B, Idaho Code. 

(6) Records of a personal nature related directly or indirectly to the 

application for and provision of statutory services rendered to persons 

applying for public care for the elderly, indigent, or mentally or physically 

handicapped, or participation in an environmental or a public health study, 

provided the provisions of this subsection making records exempt from. 

disclosure shall not apply to the extent that such records or information 

contained in those records are necessary for a background check on an 

individual that is required by federal law regulating the sale of firearms, 

guns or ammunition. 

(7) Employment security information and unemployment insurance benefit information, except that all interested parties may agree to waive the 

exemption. 

(8) Any personal records, other than names, business addresses and 

business phone numbers, such as parentage, race, religion, sex, height, 

weight, tax identification and social security numbers, financial worth or o 
• 109 PUBLIC WRITINGS 9-340C 

•
 

•
 

medical condition submitted to any public agency or independent public 

body corporate and politic pursuant to a statutory requirement for licensing, 

certification, permit or bonding. 

(9) Unless otherwise provided by agency rule, information obtained as 

part of an inquiry into a person's fitness to be granted or retain a license, 

certificate, permit, privilege, commission or position, private association 

peer review committee records authorized in title 54, Idaho Code. Any 

agency which has records exempt from disclosure under the provisions of 

this subsection shall annually make available a statistical summary of the 

number and types of matters considered and their disposition. 

(10) The records, findings, determinations .and decisions of any 

prelitigation screening panel formed under chapters 10 and 23, title 6, Idaho 

Code. 

(11) Complaints received by the board of medicine and investigations and 

informal proceedings, including informal proceedings of any committee of 

the board of medicine, pursuant to chapter 18, title 54, Idaho Code, and 

rules adopted thereunder. 

(12) Records of the department of health and welfare or a public health 

district that identify a person infected with a reportable disease. 

(13) Records of hospital care, medical records, including prescriptions, 

drug orders, records or any other prescription information that specifically 

identifies an individual patient, prescription records maintained by the 

board of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or treatment and professional counseling records relating to an 

individual's condition, diagnosis, care or treatment, provided the provisions 

of this subsection making records exempt from disclosure shall not apply to 

the extent that such records or information contained in those records are 

necessary for a background check on an individual that is required by 

federal law regulating the sale of firearms, guns or ammunition. 

(14) Information collected pursuant to the directory of new hires act, 

chapter 16, title 72" Idaho Code. 

(15) Personal information contained in motor vehicle and driver records 

that is exempt from disclosure under the provisions of chapter 2, title 49, 

Idaho Code. 

(16) Records ofthe financial status of prisoners pursuant to subsection (2) 

of section 20-607, Idaho Code. 

(17) Records ofthe Idaho state police or department of correction received 

or maintained pursuant to section 19-5514, Idaho Code, relating to DNA 

databases and databanks. 

(18) Records of the department of health and welfare relating to a survey, 

resurvey or complaint investigation of a licensed nursing facility shall be 

exempt from disclosure. Such records shall, however, be subject to disclosure 

as public records as soon as the facility in question has received the report, 

and no later than the fourteenth day following the date that department of 

health and welfare representatives officially exit the facility pursuant to 

federal regulations. Provided however, that for purposes of confidentiality, 

no record shall be released under this section which specifically identifies 

any nursing facility resident. 
9-340C EVIDENCE 110 

(19) Records and information contained in the registry ofimmunizations 

against childhood diseases maintained in the department of health and 

welfare, including information disseminated to others from the registry by 

the department of health and welfare. 

(20) Records of the Idaho housing and finance association (lHFA) relating 

to the following: 

(a) Records containing personal financial, family, health or similar per­


sonal information submitted to or otherwise obtained by the IHFA;
 

(b) Records submitted to or otherwise obtained by the IHFA with regard
 

to obtaining and servicing mortgage loans and all records relating to the
 

review, approval or rejection by the IHFA of said loans;
 

(c) Mortgage portfolio loan documents; 

(d) Records of a current or former employee other than the employee's
 

duration of employment with the association, position held and location of
 

employment. This exemption from disclosure does not include the con­


tracts of employment or any remuneration, including reimbursement of
 

expenses, of the executive director, executive officers or commissioners of
 

the association. All other personnel information relating to an association
 

employee or applicant including, but not limited to, information regarding
 

sex, race, marital status, birth date, home address and telephone number,
 

applications, testing and scoring materials, grievances, correspondence,
 

retirement plan information and performance evaluations, shall not be
 

consent. 

disclosed 

An 

to 

employee 

the public 

or authorized 

without the 

representative 

employee's or 

may 

applicant's 

inspect and 

written
 

copy
 o

that employee's personnel records, except for material used to screen and
 

test for employment or material not subject to disclosure elsewhere in the
 

Idaho public records act.
 

(21) Records of the department of health and welfare related to child 

support services in cases in which there is reasonable evidence of domestic 

violence, as defined in chapter 63, title 39, Idaho Code, that can be used to 

locate any individuals in the child support case except in response to a court 

order. 

(22) Records of the Idaho state bar lawyer's assistance program pursuant 

to chapter 49, title 54, Idaho Code, unless a participant in the program' 

authorizes the release pursuant to subsection (4) of section 54-4801 [54­

4901], Idaho Code. [I.C., § 9-340C, as added by 1999, ch. 30, § 4, p. 41; am. 

1999,ch. 347, § 2,p. 926; am. 1999,ch. 395, § 3,p. 1095; am. 2000,ch. 58, 

§ 1,p. 122; am. 2000,ch. 189,§ 3,p. 465; am. 2000,ch. 194,§ 2,p.479;am. 

2000,ch.294,§ 1,p. 1011;arn. 2000,ch. 332,§ 6,p. 1112;am.2000,ch.342,' 

§ 5, p. 1146; am. 2000, ch. 469, § 20, p. 1450; am. 2002, ch. 363, § 2, p. 

1023.] 

Compiler's notes. For this section as ef­ This section was enacted by S,L. 1999, ch. 

fective on and after January 1, 2003 (provided 30, § 4, effective July 1, 1999 which was then 

that for purposes of promulgation of rules as amended by two 1999' acts, ch. 347, § 2, and 

provided in section 57-2003, Idaho Code, S.L. ch. 395, § 3, both effective July 1, 1999, which 

2002, ch. 329, shall be in full force and effect do not conflict and have been compiled toon and after July 1, 2002 and null and void on gether. 

and after January 1, 2008), see the following The amendment by ch. 347 added subsecsection, also numbered § 9-340C: tion (18) [(19)]. o 
•
 

•
 

•
 

111 PUBLIC WRITINGS 9-340C 

The amendment by ch. 395 in subsection 

(10), substituted "chapters 10 and 23" for 

"chapter 10"; and added subsection (18). 

This section was amended by seven 2000 

acts - ch. 58, § 1, effective July 1, 2000, ch. 

189, § 3, effective July 1, 2000, ch. 194, § 2, 

effective April 4, 2000, ch. 294, § 1, effective 

July 1, 2000, ch. 332, § 6, effective July 1, 

2000, ch. 342, § 5, effective July 1, 2000, and 

ch. 469, § 20, effective July 1, 2000, which 

contained a minor conflict that has been resolved by the Code Commission and have 

been compiled together. 

The 2000 amendment by ch. 58; § 1, in 

subdivision (18), substituted "as soon as the 

facility in question has receivedd the report, 

and no later than" for "on and after"; and 

redesignated former subdivision [19)(18) as 

present subdivision (19). 

The 2000 amendment by ch. 189, § 3, in 

subdivision (13), inserted "including prescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient," preceding "records 

of psychiatric care"; and redesignated former 

subdivision [19](18) as present subdivision 

(19). 

The 2000 amendment by ch. 194, § 2, in 

subdivision (13), inserted "prescription 

records maintained by the board of pharmacy 

under section 37-2730A, Idaho Code," preceding "records of psychiatric care or treatment"; 

and redesignated former subdivision [19)(18) 

as present subdivision (19); and made minor 

stylistic changes. 

The 2000 amendment by ch. 294, § 1 redesignated former subdivision [19)(18) as present 

subdivision (19); and added subdivision (20) 

(now [(21)](20)); and made minor stylistic 

changes. 

The 2000 amendment by ch. 332, § 6, rewrote subdivision (11) which formerly read: 

"Board of professional discipline reprimands 

by informal admonition pursuant to subsection (6)(f) of section 54-1806A, Idaho Code."; 

and redesignated former subdivision [19](18) 

as present subdivision (19); and made minor 

stylistic changes. 

The 2000 amendment by ch. 342, § 5, in 

subdivision (4)(a), inserted "or independent 

public body corporate and politic" preceding 

"pursuant to law", in subdivision (4)(c), inserted "or independent public body corporate 

and politic" preceding "such as bonds", inserted "or independent public body corporate 

and politic" preceding "pursuant to law"; in 

subdivision (8), inserted "or independent public body corporate and politic" preceding "pursuant to a statutory"; redesignated former 

subdivision (19)(18) as present subdivision 

(19); and added subdivision (20); and made 

minor stylistic changes. 

The 2000 amendment by ch. 469, § 20, in 

subdivision (17), substituted "Idaho state police" for "department oflaw enforcement"; and 

redesignated former subdivision [19)(18) as 

present subdivision (19). 

Former § 9-340C, which comprised I.C., 

§ 6-311B, as added by 1974, ch. 308, § 6, p. 

1803, was repealed by S.L. 1996, ch. 169, § 2. 

The bracketed subdivision designation 

[(21)1 was inserted by the compiler. 

Sections 1 and 3 of S.L. 1999, ch. 347, are 

compiled as §§ 39-4803 and 39-4804, respectively. 

Section 2 of S.L. 1999, ch. 395, is compiled 

as § 54-1604. 

Sections 1 and 3 of S.L. 2000, ch. 194, are 

compiled as §§ 37-2730A and 9-340G, respectively. 

Section 5 of S.L. 2000, ch. 332, is compiled 

as § 54-1841. 

Section 21 ofS.L. 2000, ch. 469, is compiled 

as § 18-915. 

Section 1 of S.L. 2002, ch. 363 is compiled 

as §§ 54-4901, 54-4902. 

Section 7 of S.L. 2000, ch. 332, provides: 

"This act shall be in full force and effect on 

and after July 1, 2000, and the Board of 

Medicine is directed to begin rulemaking pursuant to Chapter 52, Title 67, Idaho Code, as 

required by Section 54-1806(2), Idaho Code. 

Until such rules are final, the Idaho Rules of 

Administrative Procedure of the Attorney 

General to the extent they are not inconsistent with rules already adopted by the Board 

of Medicine, shall be the rules of practice and 

procedure for the Board of Medicine." 

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

in §§ 54-1413, 54-1404, 56-209j and 59-1316. 

9-340C. Records exempt from disclosure - Personnel records, 

personal information, health records, professional discipline. [Effective January 1,2003 until January 1, 2008.] - The following records 

are exempt from disclosure: 

(1) Except as provided in this subsection, all personnel records of a 

current or former public official other than the public official's public service 

or employment history, classification, pay grade and step, longevity, gross 

salary and salary history, status, workplace and employing agency. All other 

personnel information relating to a public employee or applicant including, 

but not limited to, information regarding sex, race, marital status, birth 
9-340C EVIDENCE 112 

date, home address and telephone number, applications, testing and scoring
 

materials, grievances, correspondence and performance evaluations, shall
 

not be disclosed to the public without the employee's or applicant's written.
 

consent. A public official or authorized representative may inspect and copy
 

his personnel records, except for material used to screen and test for
 

employment.
 

(2) Retired employees' and retired public officials' home addresses, home
 

telephone numbers and other financial and nonfinancial membership
 

records; active and inactive member financial and membership records and
 

mortgage portfolio loan documents maintained by the public employee
 

retirement system. Financial statements prepared by retirement system
 

staff, funding agents and custodians concerning the investment of assets of
 

the public employee retirement system of Idaho are not considered confi­


dential under this chapter.
 

(3) Information and records submitted to the Idaho state lottery for the
 

performance of background investigations of employees, lottery retailers
 

and major procurement contractors; audit records of lottery retailers,
 

vendors and major procurement contractors submitted to or performed by
 

the Idaho state lottery; validation and security tests of the state lottery for
 

lottery games; business records and information submitted pursuant to
 

sections 67-7412(8) and (9) and 67-7421(8) and (9), Idaho Code, and such
 

documents and information obtained and held for the purposes of lottery
 

security 

public interest 

and investigative 

in disclosure 

action 

substantially 

as determined 

outweighs 

by lottery 

the private 

rules unless 

need 

the
 

for
 o

protection from public disclosure.
 

(4) Records of a personal nature as follows: 

(a) Records of personal debt filed with a public agency or independent
 

public body corporate and politic pursuant to law;
 

(b) Personal bank records compiled by a public depositor for the purpose
 

of public funds transactions conducted pursuant to law;
 

(c) Records of ownership of financial obligations and instruments of a
 

public agency or independent public body corporate and politic, such as
 

bonds, compiled by the public agency or independent public body corpo­


rate and politic pursuant to law;
 

(d) Records, with regard to the ownership of, or security interests in,
 

registered public obligations;
 

(e) Vital statistics records. 

(5) Information in an income or other tax return measured by items of
 

income or sales, which is gathered by a public agency for the purpose of
 

administering the tax, except such information to the extent disclosed in a
 

. written decision of the tax commission pursuant to a taxpayer protest of a 

deficiency determination by the tax commission, under the provisions of 

section 63-3045B, Idaho Code. 

(6) Records of a personal nature related directly or indirectly to the
 

application for and provision of statutory services rendered to persons
 

applying for public care for the elderly, indigent, or mentally or physically
 

handicapped, or participation in an environmental or a public health study,
 

provided the provisions of this subsection making records exempt from
 o 
• 113 PUBLIC WRITINGS 9-340C 

disclosure shall not apply to the extent that such records or information 

•
 

contained in those records are necessary for a background check on an 

individual that is required by federal law regulating the sale of firearms, 

guns or ammunition. 

(7) Employment security information and unemployment insurance benefit information, except that all interested parties may agree to waive the 

exemption. 

(8) Any personal records, other than names, business addresses and 

business phone numbers, such as parentage, race, religion, sex, height, 

weight, tax identification and social security numbers, financial worth or 

medical condition submitted to any public agency or independent public 

body corporate and politic pursuant to a statutory requirement for licensing, 

certification, permit or bonding. 

(9) Unless otherwise provided by agency rule, information obtained as 

part of an inquiry into a person's fitness to be granted or retain a license, 

certificate, permit, privilege, commission or position, private association 

peer review committee records authorized in title 54, Idaho Code. Any 

agency which has records exempt from disclosure under the provisions of 

this subsection shall annually make available a statistical summary of the 

number and types of matters considered and their disposition. 

(10) The records, findings, determinations and decisions of any 

prelitigation screening panel formed under chapters 10 and 23, title 6, Idaho 

Code. 

(11) Complaints received by the board of medicine and investigations and 

"informal proceedings, including informal proceedings of any committee of 

the board of medicine, pursuant to chapter 18, title 54, Idaho Code, and 

rules adopted thereunder. 

(12) Records of the department of health and welfare or apublic health 

district that identify a person infected with a reportable disease. 

(13) Records of hospital care, medical records, including prescriptions, 

drug orders, records or any other prescription information that specifically 

identifies an individual patient, prescription records maintained by the 

board of pharmacy under section 37-2730A, Idaho Code, records of psychiatric care or treatment and professional counseling records relating to an 

individual's condition, diagnosis, care or treatment, provided the provisions 

of this subsection making records exempt from disclosure shall not apply to 

the extent that such records or information contained in those records are 

necessary for a background check on an individual that is required by 

federal law regulating the sale of firearms, guns or ammunition. 

(14) Information collected pursuant to the directory of new hires act, 

chapter 16, title 72, Idaho Code. " 

(15) Personal information contained in motor vehicle and driver records 

that is exempt from disclosure under the provisions of chapter 2, title 49, 

Idaho Code. 

(16) Records of the financial status of prisoners pursuant to subsection (2) 

of section 20-607, Idaho Code. 

(17) Records ofthe Idaho state police or department of correction received 

or maintained pursuant to section 19-5514, Idaho Code, relating to DNA 

• 

databases and databanks. 
9-340C EVIDENCE 114 C)

(18) Records of the department of health and welfare relating to a survey, 

resurvey or complaint investigation of a licensed nursing facility shall be 

exempt from disclosure. Such records shall, however, be subject to disclosure 

as public records as soon as the facility in question has received the report, 

and no later than the fourteenth day following the date that department of 

health and welfare representatives officially exit the facility pursuant to 

federal regulations. Provided however, that for purposes of confidentiality, 

no record shall be released under this section which specifically identifies 

any nursing facility resident. 

(19) Records and information contained in the registry of immunizations 

against childhood diseases maintained in the department of health and 

welfare, including information disseminated to others from the registry by 

the department of health and welfare. 

(20) Records ofthe Idaho housing and finance association OHFA) relating 

to the following: 

(a) Records containing personal financial, family, health or similar per­


sonal information submitted to or otherwise obtained by the IHFA;
 

(b) Records submitted to or otherwise obtained by the IHFA with regard
 

to obtaining and servicing mortgage loans and all records relating to the
 

review, approval or rejection by the IHFA of said loans;
 

(c) Mortgage portfolio loan documents; 

(d) Records of a current or former employee other than the employee's
 

duration of employment with the association, position held and location of
 

employment. This exemption from disclosure does not include the con­
 o 

tracts of employment or any remuneration, including reimbursement of 

expenses, of the executive director, executive officers or commissioners of 

the association. All other personnel information relating to an association 

employee or applicant including, but not limited to, information regarding 

sex, race, marital status, birth date, home address and telephone number, 

applications, testing and scoring materials, grievances, correspondence, 

retirement plan information and performance evaluations, shall not be 

disclosed to the public without the employee's or applicant's written 

consent. An employee or authorized representative may inspect and copy 

that employee's personnel records, except for material used to screen and 

test for employment or material not subject to disclosure elsewhere in the 

Idaho public records act. 

(21) Records of the department of health and welfare related to child 

support services in cases in which there is reasonable evidence of domestic 

violence, as defined in chapter 63, title 39, Idaho Code, that can be used to 

locate any individuals in the child support case except in response to a court 

order. 

(22) Records of the Idaho state bar lawyer's assistance program pursuant 

to chapter 49, title 54, Idaho Code, unless a participant in the program 

authorizes.the release pursuant to subsection (4) of section 54-4801 [54­

4901], Idaho Code. 

[23](22) Records and information contained in the trauma registry created by chapter 20, title 57, Idaho Code, together with any reports, analyses 

and compilations created from such information and records. [I.C., § 9­ o 
• 115 PUBLIC WRITINGS 9-340D 

340C, as added by 1999, ch. 30, § 4, p. 41; am. 1999, ch. 347, § 2, p. 926; am. 

•
 

•
 

1999,ch. 395, § 3,p. i095;am.2000,ch.58,§ 1,p. 122;am.2000,ch. 189, 

§ 3,p. 465; am~ 2000,ch. 194, § 2,p. 479; am. 2000,ch. 294, § 1,p. 1011; 

am. 2000, ch. 332, § 6,p. 1112; am. 2000,ch. 342, § 5,p. 1146;am.2000,ch. 

469,§ 20,p. 1450; am. 2002,ch.329, § 3,p. 928; am. 2002,ch. 363, § 2,p. 

1023.] 

Compiler's notes. For this section as ef­ Section 2 of S.L. 2002, ch. 329 is compiled 

fective until January 1, 2003, see the preced­ as §§ 57-2001-57-2007. 

ing section, also numbered § 9-340C. Section 1 of S.L. 2002, ch. 363 is compiled 

Section 4 of S.L. 2002, ch. 329 provides: as §§ 54-4901, 54-4902.
 

"This act shall be in full force and effect on
 Section 5 of S.L. 2002, ch. 329 provides: and after January 1, 2003, provided that for "The provisions of this act shall be null, void 

purposes of promulgation of rules as provided and of no force and effect on and after Januin section 57-2003, Idaho Code, this act shall ary 1, 2008." be in full force and effect on and after July 1,
 

2002."
 

9-340D. Records exempt from disclosure - Trade secrets, production records, appraisals, bids, proprietary information. - The 

following records are exempt from disclosure: 

(1) Trade secrets ·including those contained in response to public agency 

or independent public body corporate and politic requests for proposal, 

requests for clarification, requests for information and similar requests. 

"Trade secrets" as used in this section means information, including a 

formula, pattern, compilation, program, computer program, device, method, 

technique, process, or unpublished or in progress research that: 

(a) Derives independent economic value, actual or potential, from not 

being generally known to, and not being readily ascertainable by proper 

means by other persons who can obtain economic value from its disclosure 

or use; and 

(b) Is the subject of efforts that are reasonable under the circumstances to 

maintain its secrecy. 

(2) Production records, housing production, rental and financing records, 

sale or purchase records, catch records, mortgage portfolio loan documents, 

or similar business records of a private concern or enterprise required by 

law to be submitted to or inspected by a public agency or submitted to or 

otherwise obtained by an independent public body corporate and politic. 

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

information for regulatory purposes or its admissibility in any enforcement 

proceeding. 

(3) Records relating to the appraisal of real property, timber or mineral 

rights prior to its acquisition, sale or lease by a public agency or independent 

public body corporate and politic. 

(4) Any estimate prepared by a public agency or independent public body 

corporate and politic that details the cost of a public project until such time 

as disclosed or bids are opened, or upon award of the contract for construe­

, tion of the public project. 

(5) Examination, operating or condition reports and all documents relating thereto, prepared by or supplied to any public agency or independent 

public body corporate and politic responsible for the regulation or supervi­
9-340D EVIDENCE 116 o 

sion of financial institutions including, but not limited to, banks, savings
 

and loan associations, regulated lenders, business and industrial develop­


ment corporations, credit unions, and insurance companies, or for the
 

regulation or supervision of the issuance of securities.
 

(6) Records gathered by a local agency or the Idaho department of
 

commerce, as described in chapter 47, title 67, Idaho Code, for the specific
 

purpose of assisting a person to locate, maintain, invest in, or expand
 

. business operations in the state of Idaho. 

(7) Shipping and marketing records of commodity commissions used to
 

evaluate marketing and advertising strategies and the names and ad­


dresses of growers and shippers maintained by commodity commissions.
 

(8) Financial statements and business information and reports submitted
 

by a legal entity to a port district organized under title 70, Idaho Code, in
 

connection with a business agreement, or with a development proposal or
 

with a financing application for any industrial, manufacturing, or other
 

business activity within a port district.
 

(9) Names and addresses of seed companies, seed crop growers, seed crop
 

consignees, locations of seed crop fields, variety name and acreage by
 

variety. Upon the request of the owner of the proprietary variety, this
 

information shall be released to the owner. Provided however, that if a seed
 

crop has been identified as diseased or has been otherwise identified by the
 

Idaho department of agriculture, other state departments of agriculture, or
 

the United States department of agriculture to represent a threat to that
 

particular seed or commercial crop industry or to individual growers,
 o 

information as to test results, location, acreage involved and disease
 

symptoms of that particular seed crop, for that growing season, shall be
 

available for public inspection and copying. This exemption shall not
 

supersede the provisions of section 22-436, Idaho Code.
 

(10) Information obtained from books, records and accounts required in
 

chapter 47, title 22, Idaho Code, to be maintained by the Idaho canola and
 

rapeseed commission and pertaining to the individual production records of
 

canola or rapeseed growers.
 

(11) Records of any risk retention or self-insurance program prepared in
 

anticipation of litigation or for analysis of or settlement of potential or
 

actual money damage claims against a public entity and its employees or
 

against the industrial special indemnity fund except as otherwise discover­


able under the Idaho or federal rules of civil procedure. These records shall
 

include, but are not limited to, claims evaluations, investigatory records,
 

computerized reports of losses, case reserves, internal documents and
 

correspondence relating thereto. At the time any claim is concluded, only
 

statistical data and actual amounts paid in settlement shall be deemed a
 

public record unless otherwise ordered to be sealed by a court of competent
 

jurisdiction. Provided however, nothing in this subsection is intended to
 

limit the attorney client privilege or attorney work product privilege
 

otherwise available to. any public agency or independent public body
 

corporate and politic. .
 

(12) Records of laboratory test results provided by or retained by the 

Idaho food quality assurance laboratory. Nothing in this subsection shall o 
•
 

•
 

117 PUBLIC WRITINGS 9-340D 

limit the use which can be made, or availability of such information if used, 

for regulatory purposes or its admissibility in any enforcement proceeding. 

(13) Reports required to be filed under chapter 13, title 62, Idaho Code, 

identifying electrical or natural or manufactured gas consumption data for 

an individual customer or account. 

(14) Voluntarily prepared environmental audits, and voluntary disclosures of information submitted on or before December 31, 1997, to an 

environmental agency as defined in section 9-803, Idaho Code, which are 

claimed to be confidential business information. 

(15) Computer programs developed or purchased by or for any public 

agency or independent public body corporate and politic for its own use. As 

used in this subsection, "computer program" means a series of instructions 

or statements which permit the functioning of a computer system in a 

manner designed to provide storage, retrieval and manipulation of data 

from the computer system, and any associated documentation and source 

material that explain how to operate the computer program. Computer 

program does not include: 

(a) The original data including, but not limited to, numbers, text, voice, 

graphics and images; 

(b) Analysis, compilation and other manipulated forms of the original 

data produced by use of the program; or 

(c) The mathematical or statistical formulas that would be used if the 

manipulated forms of the original data were to be produced manually. 

(16) Active investigative records and trademark usage audits ofthe Idaho 

potato commission specifically relating to the enforcement of chapter 12, 

title 22, Idaho Code, until the commencement of formal proceedings as 

provided by rules of the commission; purchase and sales information 

submitted to the Idaho potato commission during a trademark usage audit, 

and investigation or enforcement proceedings. Inactive investigatory 

records shall be disclosed unless the disclosure would violate the standards 

set forth in subsections (1)(a) through (f) of section 9-335, Idaho Code. 

Nothing in this subsection shall limit the use which can be made, or 

availability of such information if used, for regulatory purposes or its 

admissibility in any enforcement proceeding. 

(17) All records copied or obtained by the director of the department of 

agriculture or his designee as a result of an inspection pursuant to section 

25-3806, Idaho Code, except: 

(a) Records otherwise deemed to be public records not exempt from 

disclosure pursuant to this chapter; and 

(b) Inspection reports, determinations of compliance or noncompliance 

and all other records created by the director or his designee pursuant to 

section 25-3806, Idaho Code. [I.C., § 9-340D, as added by 1999, ch. 30, 

§ 5, p. 41; am. 2000, ch. 342, § 6, p. 1146; am. 2001, ch. 383, § 2, p. 1340.] 

Compiler's notes. Section 9-803 referred "(1) 'Document,' as used in this legislation, 

to in subdivision (14) became null and void includes writings, drawings, graphs, charts, 

December 31, 1997. The previous text of that photographs, phone records and other data 

section is set out as follows: compilations, including electronic, from 

"9-803. Definitions. [Null and void De­ which information can be obtained or trans­

• 

cember 31,1997.] - As used in this chapter: lated. 
9-340E EVIDENCE 118 o _"(2) 'Environmental agency' shall mean 

any department or division of the state, local 

government or health board with authority to 

enforce any state environmental law. 

"(3) 'Environmental audit' means an internal evaluation done pursuant to a plan or 

protocol that is designed to identify and prevent noncompliance and to improve compliance with statutes, regulations, permits and 

orders. An environmental audit may be conducted by an owner or operator, by an owner 

or operator's employees or by an independent 

contractor. An environmental audit may include: 

"(a) One (1) or more facilities; 

"(b) Any activity at one (1) or more facilities; 

"(c) Impacts on one (1) or more environmental media at a facility or facilities; or 

"(d) Management systems related to a facility, an activity or an impact on environmental media. 

"(4) 'Environmental audit report'means a 

set of documents, each labeled 'Environmental Audit Report' (or a substantive equivalent 

label), and prepared as a result of an environmental audit. An environmental audit report 

may include field notes, records of observations, findings, opinions, suggestions, implementation plans, conclusions, drafts, memoranda, drawings, photographs, computergenerated or electronically recorded 

information, maps, data, charts, graphs and 

surveys, provided such supporting information is collected or developed for the primary 

purpose and in the course of an environmental audit. An environmental audit report may 

include memoranda and documents analyzing portions or all of the audit report. 

"(5) 'Environmental law' means any federal, state or local law, regulation, rule, ordinance or permit terms and conditions designed to protect or enhance the quality of 

land, water or air for the protection of human 

health, wildlife, other biota, or the environment. 

"(6) 'Person' means any individual, firm, 

association, partnership, joint stock company, 

trust, estate, local governmental entity, public 

or private corporation, or any other legal 

entity which is recognized by the law as the 

subject of rights and duties, but does not 

include any state or federal governmental 

entity or its contractors and/or subcontractors 

in the performance, operation or management 

of governmental activities, programs, functions, facilities or sites. 

"(7) 'In camera review' means a hearing or 

review in a courtroom, hearing room or chambers, to which the general public is not admitted. After such hearing or review, the content 

of the oral and other evidence and statements 

of the judge, hearing officer and counsel shall 

be held in confidence by those participating in 

or present at the hearing or review, and any 

transcript of the hearing or review shall be 

sealed and not considered a public record 

until or unless its contents are disclosed by a 

court having jurisdiction over the matter. 

[I.C., § 9-803, as added by 1995, ch. 359, § 1, 

p. 1218; am. 1996, ch. 414, § 1, p. 1376.]" 

Section 7 of S.L. 2000, ch. 342, is compiled 

as 9-341. o 

Section 1 of S.L. 2001, ch. 383, is compiled 

as §§ 25-3801 - 25-3808. 

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

in §§ 22-606, 22-609, 22-2206, 22-2209 and 

22-2718. 

This section is referred to in§§ 22-606, 

22-609. 

9-340E. Exemptions from disclosure - Archaeological, endangered species, libraries, licensing exams. - The following records are 

exempt from disclosure: 

(1) Records, maps or other records identifying the location of archaeological or geophysical sites or endangered species, if not already known to the 

general public. 

(2) Archaeological and geologic records concerning exploratory drilling, 

logging, mining and other excavation, when such records are required to be 

filed by statute for the time provided by statute. 

(3) The records of a library which, when examined alone, or when 

examined with other public records, would reveal the identity of the library 

patron checking out, requesting, or using an item from a library. 

(4) The material of a library, museum or archive which has been contributed by a private person, to the extent of any limitation that is a condition 

of the contribution. 

(5) Test questions, scoring keys, and other data 'used to administer a 

licensing examination, employment, academic or other examination or c 
• 119 PUBLIC WRITINGS 9-340F 

testing procedure before the examination is given ifthe examination is to be 

used again. Records establishing procedures for and instructing persons 

administering, grading or evaluating an examination or testing procedure 

are included in this exemption, to the extent that disclosure would create a 

risk that the result might be affected. [I.C., § 9-340E, as added by 1999, ch. 

30, § 6, p. 41.] 

9·340F. Records exempt from disclosure - Draft legislation and 

supporting materials, tax commission, petroleum clean water trust 

fund. - The following records are exempt from disclosure: 

(1) 'Records consisting of draft legislation and documents specifically 

related to such draft legislation or research requests submitted to the 

legislative services office by a member of the Idaho legislature for the 

purpose ofplacing such draft legislation into a form suitable for introduction 

as official proposed legislation of the legislature of the state of Idaho, unless 

the individual legislator having submitted or requested such records or 

research agrees to waive the provisions of confidentiality provided by this 

subsection. 

• 

(2) All papers, physical and electronic records and correspondence or 

other supporting materials comprising the work papers in the possession of 

the legislative services office or the director of legislative performance 

evaluations prior to release of the related final audit and all other records or 

materials in the possession of the legislative services office or the director of 

legislative performance evaluations that would otherwise be confidential or 

exempt from disclosure. 

(3) Records consisting of draft congressional and legislative redistricting 

plans and documents specifically related to such draft redistricting plans or 

research requests submitted to the commission staff by a member of the 

commission for reapportionment for the purpose of placing such draft 

redistricting plan into form suitable for presentation to the full membership 

of the commission, unless the individual commission member having 

submitted or requested such plans or research agrees to waive the provisions of confidentiality provided by this subsection. 

(4) Records that identify the method by which the Idaho state tax 

commission selects tax returns for audit review. 

• 

(5) Underwriting and claims records of the Idaho petroleum clean water 

trust fund obtained pursuant to section 41-4904, 41-4908, 41-4910A, 41­

4911 or 41-4911A, Idaho Code. Provided however, that this subsection shall 

not prevent the Idaho petroleum clean water trust fund's submittal to the 

Idaho department of environmental quality, or other regulatory agencies of 

information necessary to satisfy an insured's corrective action requirement 

under applicable federal or state standards in the event of a release into the 

environment from a petroleum storage tank; and provided further that 

nothing in this subsection shall prevent the Idaho petroleum clean water 

trust fund from providing auditing, reporting, or actuarial information as 

otherwise required of it pursuant to section 41-4918; 41-4924A, 41-4931, 

41-4933,41-4935,41-4940 or 41-4941, Idaho Code. [I.C., § 9-340F, as added 

by 1999, ch. 30, § 7, p. 41; am. 2000, ch. 229, § 1, p. 643; am. 2001, ch. 103, 

§ 1, p. 253.] 
C) 9-340G EVIDENCE 120 

Compiler's notes. Section S of S.L. 1999, Section 2 of S.L. 2001, ch. 103 is compiled 

ch. 30, is compiled as 16-1623. as 9-342A. 

9-340G. Exemption from disclosure - Records of court proceedings regarding judicial authorization of abortion procedures for 

minors. - In accordance with section 18-609A, Idaho Code, the following 

records are exempt from public disclosure: records contained in court files of 

judicial proceedings regarding judicial authorization of a minor's consent to 

an abortion or the performance of abortion procedures upon a minor who 

would otherwise have to obtain consent for the procedure from a parent or 

guardian, in addition to records of any judicial proceedings filed under 

section 18-609A(3), Idaho Code. [I.C., *9-340G, as added by 2000, ch. 7, *

9, p. 10.1 

Compiler's notes. Section S of S.L. 2000. Sec. to sec. ref. This section is referred to 

ch. 7. is compiled ,15 18-615. in ~~ 1S-609A. 

[9-340H] 9-340G. Certain records of the board of pharmacy. [Repealed.] 

Compiler's notes. This section. which by 2002. ch. 194. :3. p. 479. was repealed by 

comprised r.c. [9-340H] 9-340G. as added S.L. 2002. ch. 27. 1. 

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

If 

as well as 

any public 

material 

record 

which 

contains 

is exempt 

materia! 

from 

which 

disclosure, 

is not exempt 

the public 

from disclosure 

agency or 

o

independent public body corporate and politic shall, upon receipt of a 

request for disclosure, separate the exempt and nonexempt material and 

make the nonexempt material available for examination, provided that a 

denial of a request to copy nonexempt material in a public record shall not 

be based upon the fact that such nonexempt material is contained in the 

same public record as the exempt material. [I.C., *9-341, as added by 1990, 

ch. 213, 1, p. 480; am. 2000, ch. 342, *7, p. 1146.] 

Compiler's notes. Section 6 of S.L. 2000. Sec. to sec. ref. Sections 9-335 through 

ch. 342. is compiled as *

9-340D. 9-348 are referred to in .6:3-:3077. 

9-342. Access to records about a person by a person. - (1) A 

person may inspect and copy the records of a public agency or independent 

public body corporate and politic pertaining to that person, even if the 

record is otherwise exempt from public disclosure. 

(2) A person may request in writing an amendment of any record 

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

the public agency or independent public body corporate and politic shall 

either: 

(a) Make any correction of any portion of the record which the person
 

establishes is not accurate, relevant, or complete; or
 

(b) Inform the person in writing of the refusal to amend in accordance
 

with the request and the reasons for the refusal, and indicate clearly the
 

person's right to appeal the refusal and the time period for doing so. The o 
• 121 PUBLIC WRITINGS 9-342A 

procedures for appealing a refusal to amend shall be the same as those set 

forth in sections 9-343 and 9-344, Idaho Code, and the court may award 

reasonable costs and attorney's fees to the prevailing party or parties, ifit 

finds that the request for amendment or refusal to amend was frivolously 

pursued. 

(3) The right to inspect and amend records pertaining to oneself does not 

include the right to review: 

(a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic if the investigation is ongoing; 

(b) Information that is compiled in reasonable anticipation of a civil 

action or proceeding which is not otherwise discoverable; 

(c) The information relates to adoption records; 

(d) Information which is otherwise exempt from disclosure by statute or 

court rule; 

(e) Records of a prisoner maintained by the state or local agency having 

custody of the prisoner or formerly having custody of the prisoner or by 

the commission of pardons and parole. [I.C., § 9-342, as added by 1990, 

ch.213, § 1,p.480;am. 1992,ch. 200,§ 2, p. 618; am. 2000,ch. 342,§ 8, 

p. 1146; am. 2000, ch. 368, § 2, p. 1219; am. 2001, ch. 48, § 2, p. 88.] 

• 

Compiler's notes. This section was The 2000 amendment by ch. 368, § 2, in the 

amended by two 2000 acts - ch. 342, § 8 and last sentence of subdivision (2)(b), substituted 

ch. 368, § 2, both effective July 1, 2000, which "attorney's" for "attorney"; divided subdivido not conflict and have been compiled to­ sion (3) into the introductory language of 

gether. subdivision (3) and subdivisions (3)(a) 

The 2000 amendment by ch. 342, § 8, in through (3)(d); in present subdivision (3)(d), 

subsection (1), inserted "or independent pub­ added "or court rule" following "disclosure by 

lic body corporate and politic" preceding "per­ statute", added subdivision (3)(e); and made 

taining to that person"; in subsection (2), minor stylistic and punctuation changes. 

inserted "or independent public body corpo­ Sections 1 and 3 of S.L. 2000, ch. 368, are 

rate and politic" preceding "shall either"; in compiled as §§ 9-337 and 20-223, respecsubdivision (2)(b), substituted "attorney's" for tively. 

"attorney"; and in subsection (3) (now subdi­ Section 1 ofS.L. 2001, ch. 48, is compiled as 

vision (3)(a), inserted "or independent public § 9-340B. 

body corporate and politic" preceding "if the Sec. to sec. ref. Sections 9-335 through 

investigation is ongoing". 9-348 are referred to in § 63-3077. 

9-342A. Access to air quality and hazardous waste records ­

Protection of trade secrets. - (1) To the extent required by the federal 

clean air act and the resource conservation and recovery act for state 

primacy over any delegated or authorized programs, even if the record is 

otherwise exempt from disclosure under chapter 3, title 9, Idaho Code, any 

person may inspect and copy: 

(a) Air pollution emission data; 

(b) The content of any title V operating permit; 

(c) The name and address of any applicant or permittee for a hazardous 

waste treatment, storage, or disposal facility permit pursuant to chapter 

44, title 39, Idaho Code; and 

• 

(d) Any other record required to be provided to or obtained by the 

department of environmental quality pursuant to the federal clean air act 

and the resource conservation and recovery act, and the impleme~ting
9-342A EVIDENCE 122 C)

state statutes, federal regulations and state rules, unless the record is a
 

trade secret.
 

(2) For purposes of this section, a record, or a portion of the record, is a 

"trade secret" if the information contained in the record is a trade secret 

within the meaning of the Idaho trade secrets act, sections 48-801, et seq., 

Idaho Code, including commercial or financial information which, if disclosed, could cause substantial competitive harm to the person from whom 

the record was obtained. 

(3) Any record, or portion of a record, provided to or obtained by the 

department of environmental quality and identified by the person providing 

the record as a trade secret shall not be disclosed to the public and shall be 

kept confidential according to the procedures established in this section. 

(4) Nothing in this section shall be construed as limiting the disclosure of 

a trade secret by the department of environmental quality: 

(a) To any officer, employee, or authorized representative of the state or
 

the United States, under a continuing claim of confidentiality, as neces­


sary to carry out the provisions of state or federal law, or when relevant to
 

any proceeding thereunder; .
 

(b) As determined necessary by the director of the department of envi­


ronmental quality (under a continuing confidentiality claim) to protect the
 

public health and safety from imminent and substantial endangerment;
 

(c) As required by state or federal law, including section 9-343(3), Idaho
 

Code, under a continuing claim of confidentiality and subsection (1), of
 

this section; or
 o 

(d) With the consent of the person from whom the record is obtained. 

(5) It shall be the responsibility of any person providing a record to the 

department of environmental quality to give notice of the existence of a. 

trade. secret on each page or other portion of information at the time of 

submittal and such person shall have the burden of demonstrating that the 

information is a trade secret. 

(6) Notwithstanding the time frames set forth in section 9-339(1), Idaho 

Code, when a request is made to the department of environmental quality 

pursuant to the provisions of this chapter for the disclosure of information 

for which a trade secret claim has been made, and the information has not 

been demonstrated to be a trade secret to the satisfaction of the director of 

the department of environmental quality, within three (3) working days of 

receipt of the request for the disclosure of the information the department of 

environmental quality shall provide a written request for substantiation to 

the person making the confidentiality claim. A response shall be submitted 

to the department of environmental quality by the person claiming the trade 

secret protection within ten (10) working days after receipt of the request for 

substantiation or the information subject to the claim shall be disclosed 

without further notice. Upon receipt of a timely response to the request for 

substantiation, the director of the department of environmental quality 

shall determine whether the information is a trade secret subject to 

protection. 

(a) If it is determined that the information, or any portion of the
 

information, is a trade secret, within three (3) working days after receipt
 o 
9-343 • 123 PUBLIC WRITINGS 

of the response, the director of the department of environmental quality 

shall notify the person requesting the information that the request is 

denied pursuant to sections 9-339(3) and (4), Idaho Code. 

(b) If it is determined that the information, or any portion of the 

information, is not a trade secret and is, therefore, subject to disclosure, 

within three (3) working days after receipt of the response, the director of 

the department of environmental quality shall inform the person making 

the confidentiality claim of the determination. The decision shall be a final 

agency action directly appealable, de novo, to the district court of the 

county where the records or some part thereof are located. An appeal 

contesting the decision of the director of the department of environmental 

quality to release information claimed to be a trade secret shall be filed 

within ten (10) working days from the date of receipt of the written notice 

of decision. The information claimed to be a trade secret shall not be 

disclosed until the period for appeal has expired with no appeal being 

taken, or a court order has been issued finding that the information is not 

a trade secret and all appeals of that order have been exhausted. 

(7) In any appeal taken pursuant to this section, the court may award 

reasonable costs and attorney's fees to the prevailing party if it finds the 

claim of confidentiality or the decision of the director of the department of 

environmental quality to provide records was frivolously pursued. 

• 

(8) The department of environmental quality shall adopt rules which 

include: 

(a) Appropriate measures to safeguard and protect against improper 

disclosure of trade secrets, including procedures to train all employees on 

the proper handling of trade secrets; and 

(b) Any other provisions necessary to carry out this section. 

(9) As it relates to the department of environmental quality, or to agents, 

contractors, or other representatives of the department, the immunity 

created in section 9-346, Idaho Code, shall apply only when disclosure of a 

trade secret is made consistent with this section. [I.C., § 9-342A, as added 

by 1998, ch. 125, § 1, p. 461; am. 2001, ch. 103, § 2, p. 253.] 

Compiler's notes. Sections 1 and 3 of S.L. Sec. to sec. ref. This section is referred to 

2001, ch. 103 are compiled as §§ 9-340F and in § 39-7914. 

18-6015, respectively. 

• 

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

copy of records - Retention of disputed records. - (1) The sole 

remedy for a person aggrieved by the denial of a request for disclosure is to 

institute proceedings in the district court ofthe county where the records or 

some part thereof are located, to compel the public agency or independent 

public body corporate and politic to make the information available for 

public inspection in accordance with the provisions of sections 9-337 

through 9-348, Idaho Code. The petition contesting the public agency's or 

independent public body corporate and politic's decision shall be filed within 

one hundred eighty (180) calendar days from the date of mailing of the 

notice of denial or partial denial by the public agency or independent public 

body corporate and politic. The time for responsive pleadings and for 
9-346 EVIDENCE 124 c 

hearings in such proceedings shall be set by the court at the earliest possible 

time, or in no event beyond twenty-eight (28) calendar days from the date of 

filing. 

(2) The public agency or independent public body corporate and politic 

shall keep all documents or records in question until the end of the appeal 

period, until a decision has been rendered on the petition, or as otherwise 

statutorily provided, whichever is longer. 

(3) Nothing contained in sections 9-337 through 9-348, Idaho Code, shall 

limit the availability of documents and records for discovery in the normal 

course of judicial or administrative adjudicatory proceedings, subject to the 

law and rules of evidence and of discovery governing such proceedings. 

Additionally, in any criminal appeal or post-conviction civil action, sections 

9-335 through 9-348, Idaho Code, shall not make available the contents of 

prosecution case files where such material has previously been provided to 

the defendant nor shall sections 9-335 through 9-348, Idaho Code, be 

available to supplement, augment, substitute or supplant discovery procedures in any other federal, civil or administrative proceeding. [I.C., § 9-343, 

as added by 1990, ch. 213, § 1, p. 480; am. 1992, ch. 200, § 3, p. 618; am. 

2000, ch. 342, § 9, p, 1146; am. 2001, ch. 101, § 1, p. 251.] 

Compiler's notes. Section 10 of S.L. 2000, Sections 9-335 through 9-348 are referred 

ch. 342, is compiled as § 9-346. to in § 63-3077. 

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

in § 9-342A. 

9-346. Immunity. - No public agency or independent public body o

corporate and politic, public official, or custodian shall be liable, nor shall a 

cause of action exist, for any loss or damage based upon the release of a 

public record governed by the provisions of this chapter if the public agency 

or independent public body corporate and politic, public official or custodian 

acted in good faith in attempting to comply with the provisions of this 

chapter. [I.C., § 9-346, as added by 1990, ch. 213, § 1, p. 480; am. 2000, ch. 

342, § 10, p. 1146.] 

Compiler's notes. Section 9 of S.L. 2000, Sec. to sec. ref. Sections 9-335 through 

ch. 342, is compiled as § 9-343. 9-348 are referred to in § 63-3077. 

9-347. Agency guidelines. - By January 1, 1991, every state agency 

or independent public body corporate and politic shall adopt guidelines that 

identify the general subject matter of all public records kept or maintained 

by the state agency or independent public body corporate and politic, the 

custodian, and the physical location of such documents. [I.C., § 9-347, as 

added by 1990, ch. 213, § 1, p. 480; am. 2000, ch. 342,§ 11, p. 1146.] 

Sec. to sec. ref. Sections 9-335 through 

9-348 are referred to in § 63-3077. 

9-348. Prohibition on distribution or sale ofmatlmg or telephone 

number lists - Penalty. - (1) Except as provided in subsections (2), (3), 

(4), (5), (6), (7) and (8) of this section, in order to protect the privacy ofthose o 
9-348 

'.
 

125 PUBLIC WRITINGS 

who deal with public agencies or an independent public body corporate and 

politic: 

(a) No agency or independent public body corporate and politic may 

distribute or sell for use as a mailing list or a telephone number list any 

list of persons without first securing the permission of those on the list; 

and 

(b) No list of persons prepared by the agency or independent public body 

corporate and politic may be used as a mailing list or a telephone number 

list except by the agency or independent public body corporate and politic 

or another agency without first securing the permission of those on the 

list. 

(2) Except as may be otherwise provided in this chapter, this section does 

not prevent an individual from compiling a mailing list or a telephone 

number list by examination or copying of public records, original documents 

or applications which are otherwise open to public inspection. 

(3) The provisions of this section do not apply to the lists of registered 

electors compiled pursuant to title 34, Idaho Code, or to lists of the names of 

employees governed by chapter 53, title 67, Idaho Code. 

(4) The provisions ofthis section shall not apply to agencies which issue 

occupational or professional licenses. 

(5) This section does not apply to the right of access either by Idaho law 

enforcement agencies or, by purchase or otherwise, of public records dealing 

with motor vehicle registration. 

(6) This section does not apply to a corporate information list developed 

by the office of the secretary of state containing the name, address, 

registered agent, officers and directors of corporations authorized to do 

business in this state or to a business information list developed by the 

department of commerce containing the name, address, telephone number 

or other relevant information of Idaho businesses or individuals requesting 

information regarding the state of Idaho or to business lists developed by 

the department of agriculture, division of marketing and development, used 

to promote food and agricultural products produced in Idaho. 

(7) This section does not apply to lists to be used for ordinary utility 

purposes which are requested by a person who supplies utility services in 

this state. Ordinary utility purposes, as used in this chapter only, do not 

include marketing or marketing research. 

(8) This section does not apply to lists to be used to give notice required 

by any statute, ordinance, rule, law or by any governing agency. 

(9) If a court finds that a person or public official has deliberately and in 

bad faith violated the provisions of subsection (1)(b) of this section, the 

person or public official shall be liable for a civil penalty assessed by the 

court in an amount not in excess of one thousand dollars ($1,000) which 

shall be paid into the general account. [I.C., § 9-348, as added by 1992, ch. 

279, § 1, p. 856; am. 1993, ch. 117, § 1, p. 294; am. 1994, ch. 398, § 1, p. 

1261; am. 1997, ch. 152, § ,2, p. 432; am. 2000, ch. 342,,§ 12, p. 1146.] 

Compiler's notes. Section 13 of S.L, 2000, Sec. to sec. ref. Sections 9-335 through 

ch. 342, is compiled as § 67-5241. 9-348 are referred to in § 63-3077,