# • IDAHO CODE

CONTAINING THE 

# GENERALLAWS OF IDAHO

ANNOTATED

ORIGINALLY PUBLISHED BYAUTHORITY OF LAWS 1947, CHAPTER 224

REPUBLISHED BYAUTHORITY OF LAWS 1949, CHAPTER 167 ASAMENDED 

# • Compiled Under the Supervision ofthe Idaho Code Commission



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COMMISSIONERS

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### TITLES 39 (44-83),40

# 4~MICHIE 

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• PUBLISHER'S NOTE

Since the publication in 1998 ofReplacement Titles 39 (44-83), 40 many laws havebeenamendedor repealedandmanynew lawshavebeenenacted. The resultingincreasein the size ofthecumulative supplementfor Titles 39 (44-83), 40 has made it necessary to revise this volume. Accordingly, ReplacementTitles 39 (44-83),40 is issuedwiththe approval andunderthe direction of the Idaho Code Commission.

To

### 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
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### 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.

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### lexis.com as ofMarch 19,2002. These

cases will be printed in the following reports:
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### I.I.R Idaho Infraction Rules 

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III 

# •

# • TITLE 39

HEALTHAND 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 [REPEALED.) 66.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 INDOORAm, §§ 39-5501- 39-5510. 78. '!bBACCO MASTER SETIU:MENT AGREEMENT, 

# • 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 CAREACCESS 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 ofhazardous 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 ofentry. 39-4406. General powers and duties of direc­ 39-4413. Enforcement procedures. tor. 39-4414. Remedies. 39-4407. Identification ofhazardous 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 

# •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 ofcommercial disposal 39·4427B

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 [Repealed.)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

39-4401. Short title.

- This act may be known and cited as the "HazardousWaste ManagementAct of 1983." [I.C., § 39-4401, as added by 1983, ch. 154, § 1, p. 416.]

Compiler's notes. The words "this act" CollateralReferences.Amountand 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 chapteris 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. 

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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 ofhazardous 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) Toprotectthepublichealth and safety, thehealthoflivingorganisms, and the environment from the effects of the improper, inadequate, or unsourid management ofhazardous waste; (b) Toestablish a programto trackand controlhazardouswastesfrom 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'snotes. Forwords "thisact," see wastes into sewer systems. 47 A.L.R.3d 1224. Compiler's notes, § 39-440l. Applicabilityofzoningregulations to waste

Collateral References. Validity and con­ disposal facilities ofstate 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 off site by generators other than the owner and operator of the facility. (3) "Department"means the Idahodepartment ofenvironmental quality. (4) "Director"meansthe directoroftheIdahodepartmentofenvironmental quality or the director's authorized agent. (5) "Disposal"means the discharge, deposit, injection, dumping, spilling, leaking or placing ofany 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 notinclude any subsequent changes to the weight resulting from the management of the waste by the facility. (7) "Generator" means any person, who by virtue ofownership, management, or control, is responsible for causing or allowing to be caused the creation of a hazardous waste.

(8) "Hazardouswaste"means a waste or combination ofwastes of a solid, liquid, semisolid, or contained gaseous form which, because of its quantity, concentration or characteristics (physical, chemical or biological) may:

(a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or (b) Pose a substantial threat to human health or to the environment if improperlytreated, stored, disposed of, or managed. Suchwastesinclude, 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.

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39-4403 HEALTHAND SAFETY 4

(11) "Injection" means the subsurface emplacement of free liquids. (12) "Manifest"means a form used for identifying the quantity, composition, origin, routing, wasteidentificationcoders), and destination ofhazardous 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 similarto that ofthe federal uniform hazardous wastemanifest or by other manifest requirements designed 

### to assure proper treatment, storage and disposal of such waste.

. (14) "PCB waste"means anywasteor wasteitemwhich is notincludedin 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 theresource conservation andrecovery actof 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 ofengineers 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 ofhazardous 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 ofany hazardous waste to or from a hazardous waste facility or site. (20) "Transporter"means any personwho 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 anyhazardous waste prior to storage

orfinal disposal so as to neutralize suchwaste or so asto 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 

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5 HAZARDOUS WASTE I\-tANAGEMENT 39-4404

intended to be discarded. [I.C., § 39-4403, as addedby 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 appearto be compatible and have been compiled together.

The amendment by ch. 103. § 45, substituted "environmental quality"for "health and welfare"throughoutthe 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 thatthe state ofldahoenact and carryout a hazardous waste program that will enable the state to assume primacy overhazardous waste control from the federal government.

The legislaturefinds thatthe RCRA, as amended, 42 U.s.C., section 6901
etseq., and federal regulations adoptedpursuant 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 ofall oftheregulationswhichhave been or will be established under RCRA. However, by the provisions ofthis chapter, the legislature desires to avoid the existence of duplicative, overlapping or conflicting state and federal regulatory systems.



# • Therefore, the boardis directed to promulgate rules which are consistent with RCRA and the federal regulations adopted by the administratorofthe United States environmentalprotection agency to implement RCRA. Farmers and ranchers who treat, store, or dispose ofwaste pesticides from their operations on lands owned or controlled by them shall not be required by boardrulesto do anythingmorethanfollow theinstructionson thepesticide 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 statuteswithoutshowing thatthoserules arerequired 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 ofthe environmental protection agency. Any rule promulgated by the board shall be valid until it is repealed or modified through the administrativeprocess ofchapter52, 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 andch. 291, § 2 both effective July 1, 1993­ which do not conflict and have been compiled together.

The amendmentby ch. 216, § 27 in thefirst sentence of the**seco~d** paragraph added "federal"following "6901 et seq., and"; in thethird 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 "consistentwith 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, the board shall adopt such rules as are necessary and feasible for the 

# o

management of the generation, collection, transportation, treatment, storage, and disposal ofhazardous wastes withinthe state. The board shall also adopt such rules as necessary to regulate persons who produce, burn, distribute, and market fuel containinghazardous waste. The rules promulgated by the board shall be a part ofthis code and shall have the force and effect of law. Such rules shall include, but not be limited to: (1) Criteriafor the determination ofwhetheranywaste or combinationof
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, consistentwith thoseissued 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 ofunderground storagetanks, as maybe necessaryto protect human health and the environment; 

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# • 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
wastefacilityor site. [I.C., § 39-4405, as addedby 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 ofdirector.

- 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 ofhazardous waste managementin this state; (3) Shall develop, publish, and revise as necessary a plan for the safe and effective management ofhazardous 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 othersections ofthis 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 ofhazardous wastes.

- (1) Theboard shall establish criteria for determining ifany 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 ofa public hearing, list as hazardous any waste or combination of
wastes determined to be hazardous by the United States environmental \. protection agency. Toaccomplish thisgoal, theboardmayadoptby reference the regulations containing the lists of hazardous wastes and the set of characteristics for identifyinghazardous wastespromulgated by the United Statesenvironmentalprotection agency pursuantto RCRA. Theboard shall update theregulations 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 departmenthasissued saidperson a permitor a variance asrequired 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) Placementinthe owner or operator'slandfill will notpresent a risk of contaminationofanyexistingor potential underground sourceofdrinking
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 ofanyhazardous waste prohibitedfrom 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, ordisposal facilities.

- (1) No person shall construct, operate,

or modify a hazardous waste treatment, storage, or disposal facility or site withouta permitfrom the department. The owner oroperatorofthefacility

or siteratherthanthe builder shallbe responsible for obtainingthe permit. Permitsmaycontainsuchconditionsnecessaryto protecthumanhealth and environment. The board may exempt classes or categories of hazardous
waste treatment, storage, or disposal facilities from thepermitrequirement 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 

# o9 HAZARDOUS WASTE MANAGEMENT 39-4409 

# •

•

• program is authorizedby 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 ofexisting interim
status facilities to comply with all regulations which apply to new facilities; and (c) Provide for the termination ofinterim status. (3) The board shall promulgate rules and regulations establishing the
terms and conditionsfor issuingpermitsto 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) Educationand trainingqualifications ofpersonnel atthefacilities and sites; (c) Contractual commitment or consent to each facility or site from all holders ofinterests in the real property committed to that facility or site; (d) Monetary assurances in such form and amount as are necessary for 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 orthe 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 promulgatedpursuantto itandimprovementsintechnology. Permitsissued
to hazardous waste facilities and sites by the department prior to the effectivedateofthis chaptershallbe reissuedtoconform withtheprovisions 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 managementunit at the treatment, storage, or disposal facility seekingthe permit, regardless of the time when the waste was placed in such unit. Permits issued from November 8, 1985, until the effective date ofthisprovision shallbereissued
to conform with this provision.10 39-4409 HEALTH AND SAFETY

(6) Any permit issued under this section may be revoked by the director pursuant to the provisions of section 39-4413, Idaho Code, ifthe 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 andregulations promulgated under this section, if, in thejudgmentof the director, application of the requirements would cause unreasonable hardship and the granting of a variancewould notbe 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 ofthe department may issue a research, development and demonstration permitfor anyhazardouswaste treatmenttechnology

or process for whichpermitstandardsfor suchexperimental activityhave
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 ofthe facility for notlongerthan one (1)year (unlessrenewed

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 capabilitiesofthe technology or process and the effects ofsuchtechnology 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) ofthis subsection in establishing the conditions ofeachpermit without separate establishment of regulations implementing such criteria. (c) For the purpose of expediting review and issuance of permits under this subsection, the directormay, consistentwith theprotection ofhuman 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 ofregulations 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 addedby 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 actswhich 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 faceimpoundments"; and in the first sentence in §§ 39-4413, 39-4426. 39-4427. ofsubsection (5). inserted "issued."



# • 39-4410. Transportationofhazardouswaste.

- (1) Theboard shall promulgatehazardouswaste transportationrules andregulationsto control theintrastateandinterstatetransportation offederallyregulated types and quantities ofhazardouswaste. Therules andregulations shallbe consistent with the rules and regulations issued by the United States department of transportation and theUnited Statesenvironmental protection agency. The rules andregulations shall alsobe consistentwiththerules 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 thatcase the board shall conferwiththe commission and endeavorto 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) Thehazardouswastetransportationrules andregulations shall apply to all transporters offederally regulated types and quantities ofhazardous
waste generated either by themselves or by others. These rules and regulations shall apply to any movement of a regulated quantity ofhazardous 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 ofhazardous wastes; (b) Standards for the handling and placarding ofhazardous 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 necessaryto protectthe public health, thepublic 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 andthe transporter has obtained a special permit from the Idaho transportation department as provided in sections 49-2202 and 49-2203, Idaho Code. Ifan improperlydocumented shipmentofhazardouswaste arrivesata 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 ofits 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'snotes. 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 ofthis act shall be in full force and effect on and after this act's passage and approval. Theremainingprovisionsofthis act shall be in full force and effect on and after

39-4411. Records

- Reporting January I, 1987; provided, however, that the IdahoTransportation Board and IdahoTransportation Department shall be authorized to permit any person renewing or purchasing a vehicle registration on and afterJuly 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 EnforcementAccountwhich is created in section 49-2507, Idaho Code [amended and redesignated as § 49-22051,whichis enactedby 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.

Crossref. Motor CarrierAct, §§ 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 ofrecords and reports; (b) The submittal of records and reports; (c) The taking ofsamples and the performing oftests and ofanalyses; (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 ofrelevant 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) ofthis 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 ofhazardous 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) EffectiveJanuary 1,1996,the operatorofeachcommercial hazardous
wastedisposal facilityor sitein the stateshall, no laterthan 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 ofeach yearthe department shall submit a reportto the governor and the legislature detailing the types :md quantities of hazardous wastes generated in this state, the types and quantities ofsuch
wastes shipped for treatment and disposal by landfilling or other means of disposal, thetypes and quantitiesofsuchwastesremainingin storage atthe end of the most recent reporting period and the types and quantities of hazardouswaste generated outside this state and shipped intothis 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 its39-4412 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 searchesconductedundertheauthorityofthis chaptershallbe performedin 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, ofthe constitution ofthe state ofIdaho. The
state shall not, under the authority granted by this chapter, conduct warrantless administrative searches of private property in the absence of eitherconsentfrom thepropertyowneror occupieror exigentcircumstances 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 havebeen 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 ofconveyance wherehazardous wastes are or have beencontained
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 ofhazardous 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 similarlybe providedupon requestifthe requesting party agrees to have the samples analyzed and to share the results of the analysis with the department. (4) The right ofentry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability ofthe facility owner or operator. The right of entry of a duly authorized state or health district employee shall not be subject to any confidentialityrequirements 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 ofinformation by the department or the transmission of information from the
contractorto the departmentor theUnited Statesenvironmental 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

reasonablecausefor issuance ofthewarrantortheexistenceofa 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'snotes. 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 anyperson is in violation ofanyprovision ofthis chapteror anypermit, 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 ENFORCEMENTACTIONS.



# • (a) Notice. The director may commence an administrative enforcement actionby issuing a written notice ofviolation. Thenotice ofviolation shall identify the alleged violation with specificity, shall specify each provision ofthe 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 ofreceipt ofthe notice of violation by the person to whom it is directed. (b) Scheduling Compliance Conference. If a recipient of a notice of violation contactsthe departmentwithin fifteen (15) days ofthereceiptof notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days ofthe date ofreceipt 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 ofthe alleged violation and, where appropriate, to present

a proposal for remedying damage caused by the alleged violation and for assuring future compliance. Ifthe 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. Theconsentordermayinclude a provision for paymentof any agreed civil penalty. (d) EffectofConsentOrder.Aconsentordershallbe effectiveimmediately 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 reliefas authorized in this chapter. (e) Failure to Reach Agreement on Consent Order. Ifthe 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 conferencepursuantto 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 mayrevoke or temporarily suspendthe 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 unforeseeableactof God despite a permitted party's reasonableeffortsto 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 partya written notice ofintent
to suspend or revoke. The notice shall inform the permitted party offacts

or conduct which warrant suspension or revocation of the permit. The notice, hearing, and record requirements for contested cases contained in the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and subsection (A)(2)(c)ofthis section shall applyto 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 timelyrequestby a permitholderfor a hearingto review the director's action under subsection (A)(2)(b) ofthis section, the director shall promptlyconduct a hearingopen to thepublic. 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 ofpapers, books, drawings, documents, test results, and other evidencerelevant to a permit suspension or revocation investigation or adjudication. (iii) Afterthe hearing, the director shallissue a written opinion setting forth findings of fact, conclusions of law and an order. An aggrieved person subjectto thedirector'sordermayseekitsreview as a final order in a district court as provided by the Idaho administrative procedure act. Districtcourtreview ofthedirector's decision shall be limitedto 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, consentorder, or orderwhichhas become effectivepursuant 

# C)

# •

• 17 HAZARDOUS WASTE MANAGEMENT 

### 39-4414

to this chapter. Such action may be brought to compel compliance with any provision ofthischapteror with anyrule, regulation, permit or order promulgated hereunder, and for any reliefor 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 attorneyofthe county where a civil enforcement action may arise. (8) 

### ACTIONS AGAINST GUARANTORS. Ifthe owner or operator is in bankruptcy, reorganization or other arrangement pursuant to the federal bankruptcy code, or wherejurisdiction cannotbe obtained over an owner or operator likely to be solvent at the time ofjudgment, an action may be brought directly against a guarantor offinancial responsibility by the state

or any injured party for any claim arising from conduct for which guarantees offinancial 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 ofthis 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'snotes. 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 11U.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 thepurposeofcomplyingwiththeprovisions ofthis chaptershallbeliable for a civil penaltynotto exceed tenthousand dollars ($10,000) for each separateviolation 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 accountthe seriousness ofthe violation, good faith efforts to comply with39-4414 HEALTH AND SAFETY 18

the law, and an enforceablecommitmentby the person againstwhom the penalty is directed to implement a supplemental environmental project. Forpurposesofthis section, "supplementalenvironmental project"means

a projectwhich thepersonis nototherwiserequiredto perform andwhich 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 projectproposal, preferencemaybe givento those projects with an environmental benefit, which relates to the violation or the objectives oftheunderlying statutewhich wasviolated, or which enhances the quality ofthe environmentin the general geographic location where the violation occurred. (2) ASSESSMENT OF COSTS. Any person who violates this chapter or anypermit, standard,regulation,condition,requirement, complianceagreement, 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, includingthereasonablevalueofattorneys'services, for preparing and litigating the case; (c) The state's costs for mitigating, removing, correcting or terminating adverseeffects upon soil, air, or waterqualityresultingfrom theviolation; 

# c (d) The state's costs for impounding, storing, and disposing of contami­ nated property; (e) Compensation for damages to publicly held resources including but
notlimitedto, land, water,recreationaluses, wildlife, fish and aquaticlife
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 ofthe violation and good faith efforts to complywith the law. (3) RESTRAINING ORDERS, INJUNCTIONSAND OTHER RELIEF. (a) Any person who violates any provision ofthis chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or orderissued or promulgated pursuantto this chapter shallbe subjectto 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 notbe issued orthat the remedy atlaw 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 ofthis chapter or any standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter. (4) PAYMENT TO HAZARDOUS WASTE EMERGENCYACCOUNT. 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 emergencyaccountcreatedby 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 constitutingmisdemeanors.

- (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 ofcomplying with the provisions ofthis chapter shall be guilty ofa misdemeanor and subject to a fine ofnot more than ten thousand dollars ($10,000) or to imprisonmentnotto exceed one (1) year, or to both, for each separate violation or for each day ofa continuing violation. (2) Any person who knowingly violates any provision of this chapter or anypermit, standard,regulation, condition,requirement, compliance agreement, or order issued or promulgated pursuant to this chapter shall be guilty ofa misdemeanor and subjectto a fine ofnot 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 ofa continuing violation.

(3) An action maybe commenced andprosecutedby the attorneygeneral. The director shall notbe required to initiate orprosecute an administrative or civil action before the attorney general may commence and prosecute a criminal action. [I.C., § 39-4415, as addedby 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 thatperson's own behalfagainstanyperson allegedto 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 onethousanddollars ($1,000)or inconformancewiththerequirements of rule 65(c) of the Idaho Rules of Civil Procedure if injunctive relief is sought.

(2) No action may be commencedunder subsection (1) ofthis section ifthe departmenthascommenced andis diligentlyprosecutinganadministrative, civil, or criminal action to require compliance with the law. Further, no action may be commenced under subsection (1) of this section unless the39-4417 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, ifthe department commences an action in a court ofthe state ofIdaho, any interestedpersonmayintervene as providedin rule24(a)oftheIdaho Rules ofCivil 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) Nothingin this section shallrestrictanyrightwhich 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'snotes. 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 mitigatinganythreatto thepublichealthor 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 theaccount areherebyperpetuallyappropriated 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 andafter the first Monday statecontroller 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 ofcounty 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. Interstatecooperation.

- The directorshallhavethepower and the duty to encourage cooperative activities between the department and other statesfor theimproved managementofhazardouswastes, and so far as is practical, to providefor uniform stateregulations and for interstate agreements relating to hazardous waste management. The state mayenter intosuch agreementswithotherstatesto accomplishthepurposes as setout 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 becausethe employmenttestifies, provides information or otherwise assists in the enforcement or administration ofthe provisions ofthis chapter. (2) Any employerwho knowinglyviolatestheprovisions 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 thecommon law. [I.C., § 39-4420, as added by 1983, ch. 154, § 1, p. 416.]

39-4421. Good samaritan protection.

- (1) Notwithstanding any provision oflawto the contrary, no personwho provides assistanceor advice in mitigatingor attemptingto mitigatetheeffectsofanactual orthreatened leakage, seepage, or other release of hazardous waste, or in preventing, cleaning up, or disposing of or in attemptingto prevent, clean up or dispose of any such leakage, seepage or other release, shall be subject to civil liabilities or penalties ofany type. (2) The immunities provided in subsection (1) ofthis 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 otherrelease andwho would otherwisebe 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 ofthis actareherebydeclared 

### 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'sDotes.For words "this act" see Compiler's notes, § 39-4401.



### 39-4423. Disposal ofrestricted 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, IdahoCode, 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) 

### ofthis section, if, in thejudgmentofthe 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 ofmanaginghazardous wastes in 

### an appropriatemannerin the first instance; and (c) Thepersistence, toxicity, mobility, andpropensityto bioaccumulate of such hazardous wastes and their hazardous constituents. (3)(a) Theboard shall promulgate rules and regulations specifying those levels or methods of treatment, ifany, which substantially diminish the toxicity ofthe wasteor substantiallyreducethelikelihood ofmigration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. (b) If

### suchrestricted hazardous waste has been treated to thelevel 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 facilitywhichmeets therequirements ofthis 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. Disposalofmanifested waste.

- Manifested waste, as that
termis 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 produceheatis otherwiselawful. [I.C., § 

### 39-4424, as addedby 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. Appointmentofinspectors.

- (1) 

### The department ofenvironmental 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) 

### ofthis section shall alert proper authorities or peace officers regarding violations pursuant to this chapter, violations pursuant to title 49, Idaho Code, andviolationsto anyrulesissuedpursuantto section 67-2901A, Idaho Code. (3) All actions brought for violations ofthe provisions of this chapter or rules promulgatedpursuantthereto shall be brought as provided for in this chapter.All actions broughtfor violations oftheprovisions oftitle49, Idaho Code, shallbe broughtas providedinthattitle. [I.C., § 

### 39-4426, asaddedby 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 ofevery commercial hazardous waste disposal facility or sitepermitted under section 39-4409, Idaho Code, the lowest applicable fee for each ton ofwaste or fraction thereof, as follows: (a) Thirty dollars ($30.00) per gate ton or fraction thereoffor 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;

# c

39-4427 HEALTH AND SAFETY 24

(c) Twentydollars ($20.00) pergateton or fractionthereofforthefirsttwo thousand five hundred (2,500) gate tons or less ofwastes received by a facility or site in a calendar year from the same initial generator ifthe
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 subjectto regulation solely

as a result ofa 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 containedinparagraph (c) ofthis subsection, ifthewastes arereceived 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 thereoffor 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 PCBsin concentrationslessthan fifty (50) parts permillion andnototherwiseregulated by Idahoorfederal law; or (iv) are wastes not otherwise defined in this subsection. 

# o
(2) Thefees setforth in subsection (1)ofthis sectionshallnotapplyto any of the following types ofwastes: (a) Wastes generated or disposed ofby 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 ofIdaho. Any waste for which the fees are waived under the provisions of this section mustbe 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 thereoffor the characterization, collection, identification, transportation, treatment, storage and disposal ofwastes 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 sectionwas formerlycompiled 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 generatorgeneratingwaste during calendar year 1998, there is imposed a generator fee to be remitted to thedepartmentofhealth 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

- Duplihazardouswaste as definedby 40 CFRsection 261, in any calendar month, or generates

more than two thousand two hundred (2,200) pounds of hazardous waste at any time in a calendarmonth, shall be subjectto 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 subjectto an annual fee ofsevenhundred fifty dollars ($750).

"(2) The fee set forth in subsection (1) of this section shall not applyto generatorswho:

"(a) Are public or governmental entities; "(b) Are dry cleaners; or "(e) Demonstrate, to the satisfaction of the director ofthedepartment, an inabilityto pay all or a portion ofthe 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 departmentofhealthandwelfareno laterthanthirty (30) days aftertheend ofcalendar 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 ofthe director ofthe 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.

# o

39-4427D HEALTH AND SAFETY 26

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 or39-4427C, Idaho Code, shall onlybe required 

### to paythehighest applicablefee under anyone (1) of those sections.

(2) For purposes ofthis section, thefee for section 39-4427A, Idaho Code, shall be the total amount required to be paid under subsection (1) ofsection 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 inmonthlyinstallments by the owner, agent, employee, or operator ofsuch hazardous waste facility orsite and remittance shallbe made to the Idahodepartment ofenvironmental quality on or before thefifteenth dayof 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 ofthe month, shall make out a return, upon such forms settingforth such information as the department may require, showing the amount of the fee for which the 

# o

owner or operator of the hazardous waste facility or site is liable for the preceding monthly period, and shall sign and transmit the same to the department, together with a remittance for such amount in the form required. (2) The department may relieve any person or class ofpersons 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'snotes. 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 inspectionbydepartmentofenvironmentalquality.

- Everypersonorentity subjectto theimposition ofthefees specified in section 39-4427, IdahoCode, shall keep complete and accurate records, including itemized invoices and manifests for federally regulated types and quantities ofhazardous 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 keptby this section shall be preserved for a period of at least five (5) yearsfrom thedateoftherecords orthedate oftheentriesappearing in the records, unless the department in writing, authorized their destruction or disposal at an earlierdate. For purposes ofthis 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 inspectthepremises,therecords requiredto be keptunderthischapter, and the hazardous wastes or other chemicals contained therein, to determine whetheror not all theapplicableprovisions ofsections39-4427 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. Ifthe department, or any ofits authorized agents or employeesis unreasonablydeniedfree access or is unreasonablyhinderedor interfered with in making the examination of a hazardous waste facility or site, that hindrance or interference shall constitute grounds for suspension

or revocationofthefacility or site'spermitby thedirectorofthedepartment 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, IdahoCode, as theynow exist or as theymay 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 andbe for acts, omissions, delinquencies, andrequirements 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 theynow exist or as they may subsequently be amended, shall apply and be available to the departmentofenvironmental qualityfor theenforcementofthecommercial 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 atlaw or in equity by any person aggrieved by the unlawful seizure orsaleofhisproperty, or in any suitfor refundorto recover

an overpayment, butonlythe stateofIdaho shallbe responsible for anyfinal judgment secured against the department of environmental quality and saidjudgment shall be paid or satisfied out ofthe general fund ofthe 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. Distributionofcommercialdisposal 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 equalto theremainingfive percent (5%) shall be remitted
to the countytreasurer ofthe county or counties where the activityoccurred which caused the fees to be assessed pursuantto 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'snotes. 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 ofdirective. 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 

# GENERALLAWS OF IDAHO

ANNOTATED

ORIGINALLY PUBLISHED BYAUTHORITY OF LAWS 1947, CHAPTER 224

REPUBLISHED BYAUTHORITY OF LAWS 1949, CHAPTER 167 AS AMENDED 

# • Compiled Under the Supervision ofthe 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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### 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 ofReplacement Titles 39 (44-83), 40 many laws havebeenamended or repealed andmanynew lawshavebeenenacted. The resultingincreasein the size ofthecumulative supplementfor Titles 39 (44-83), 40 has made it necessary to revise this volume. Accordingly, ReplacementTitles 39(44-83),40is issued withthe approval and underthe direction ofthe Idaho Code Commission. 'Io 

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# • iii.

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39-5801 HEALTH AND SAFETY 

### 86

CHAPTER 58

HAZARDOUS WASTE FACILITY SITING

SECTION. SECTION. 39·5801. Shorttitle. 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 ofdirector 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 ofplan. 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 disofplan. trict health departments. 39-5811. Expansion, enlargement or alter­ 39-5820. Remedy for devaluation ofproperty ation oftreatment, 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 chapteris 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 resultfrom the improperland disposal ofhazardouswaste and thatthe need for establishing safe sites with adequate capacity for the disposal of hazardouswaste is a matterofstatewide concern, andtheprovisions ofthis chapterare therefore enacted to provide an effective method ofestablishing such sites. (2) It

### is the intent ofthe legislature ofthe state ofIdaho that generators of hazardous waste be encouraged to use on-site and off-site alternative treatment methods to reduce the amount ofhazardous 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 ofhazardous waste thatmustbe buried are available. For suchpurpose,theprovisions 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, 

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# • 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 existinghazardouswaste management actpermittingprocess

as setforth in section 39-4409, IdahoCode. The sitelicenseis a preliminary, general review which is not based on the type ofspecific, detailed technical informationrequiredforthehazardouswastemanagementactpermit. [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 sitereview panel created in section 39-5811, Idaho Code.

(2) "Committee"means the statehazardouswaste managementplanning 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 oftitle 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 managedhazardouswaste, as definedby rule,is intentionallyplacedinto 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 maybedividedby a publicorprivate right-of-wayifthe 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 ofproperty owned by the same person but connected by a right-of-waywhichthe ownercontrols and to which the public does not have access is also considered on-site property.

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

a disposal, treatment or storage facility with approval ofthe director either by contract or permit.

(13) "Person" is defined in section 39-4403, Idaho Code. (4) "Plan"means the statehazardous waste managementplan prepared 

# • under the provisions of section 39-5806, Idaho Code. (5) "Storage" is defined in section 39-4403, Idaho Code

.

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39-5804 HEALTH AND SAFETY 88

(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 ofthe solidwaste disposal act"means sections 1001 through 8006 ofpublic law 89-272, 42 U.S.C. 6901, 6902through 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. Thereference 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 ofhazardouswastemanagement.

- Thedepartment and the committee in the conduct oftheir duties under the provisions of this chapter and under the provisions ofchapter 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.] 

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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 ofthe state. No laterthan 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 ofcity 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) Afaculty member of a university or college in this statewell versedin geology, hydrology or other environmental matters; (rn) The director ofthe Idaho transportation department or his designee; (n) One (1) representative of the mining industry; (0) One (1) representative of the forest products industry; and 

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• 89 HAZARDOUS WASTE FACILITY.SITING 39-5806

(p) One (1) representative ofthe agricultural industry. (2) A vacancy occurring on the committee shall be filled in the same
manner as the original appointment. (3) The chairman ofthecommittee shall be electedby themembersofthe committee and the chairman shall be a voting member ofthe 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 committeeby majorityvote shall establish operatingprocedures. The operating procedures shall be made available for public review. (6) Intheconduct ofitsbusiness, thecommitteeshall solicitthe adviceof, and consult periodically with cities, counties and persons within the state for thepurposeofreceivinginformation or advice thatmaybe helpful in the preparation of the plan.

(7) Employees ofthe departmentofenvironmental quality, departmentof
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) Uponpetitionto thedirectorandthe director'srecommendationto the governor, thegovernorshall appointa committeein thesame manneras the original committee to amend or revise the plan. (10) The committee shall hold its first meeting as soon as practicable afterconfirmationby thesenate. 

## u.c., § 39-5805, as addedby 1985,ch. 113, § 1, p. 220; am. 2001, ch. 103, § 51, p. 253.]

Compiler'snotes. Section 50 ofS.L. 2001, ch. 103 is compiled as § 39-5803.

39-5806. Statehazardouswaste sitingmanagementplan

- 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 ofhazardous waste treatment, storage, or disposal facilities to meet existing and probable future needs. (b) Be based upon location ofgenerators, 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) Thecommitteemay instructthe departmentofenvironmentalquality, 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:

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39-5807 HEALTH AND SAFETY 90

(a) An inventory and evaluation of the sources of hazardous waste generation within this state or from other states, includingthe types and quantities ofthe hazardous waste. (b) An inventoryand evaluationofcurrenthazardouswastemanagement practices and costs, including treatment and disposal, within this state. (c) A projection or determination offuture hazardouswaste management needs based on an evaluation ofexistingcapacities, 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, managementcontrol systems, and an identified need for additional privately owned or state owned treatment, storage, or disposal facilities. (d) An investigation and analysis ofmethods andincentives to encourage interstate and international cooperationin the managementofhazardous
waste. (e) An investigation and analysis of methods, incentives or technologies for sourcereduction, reuse,recycling, or recoveryofpotentiallyhazardous
waste and a strategy for encouraging the utilization or reduction of hazardous waste. (f) An investigation and analysis ofalternate methods for treatment and disposal ofhazardous waste. (4) Upon completion of the plan, the committee shall publish a notice after giving twenty (20) days' notice as provided in section 60-109, Idaho 

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Code, in a number ofnewspapers and shall issue a statewide news release announcing the availabilityoftheplan for inspection by interested persons. The announcement shall indicate where and how the plan maybe 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 ofthe notice announcing the availability ofthe plan. (5) After public hearings, the committee shall prepare a written summary ofthe comments received, provide comments on the major concerns raised, make amendments to theplan as necessaryand shallformally adopt the plan, and shall submit the plan to the legislature at the first regular session ofthe legislature following adoption ofthe 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, adoptorreject the plan by passage of a concurrentresolution atthe 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.] 

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### 91 HAZARDOUS WASTE FACILITY SITING 

### 39-5812 

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•

• 39·5808. Siting license required. - No person shall construct, expand, enlargeor altera commercial hazardouswastedisposal, treatmentor 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 operatorofthefacility or siteratherthan thebuildershallbe responsiblefor obtaining the license. Facilities exempted from permittingunder the provisions of section 39-4409, Idaho Code, shall not require a license under the provisions ofthis 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 directormay issue permits undertheprovisions ofchapter44, title 39, Idaho Code, or licenses pursuant to this chapter, for existing or proposedhazardouswastetreatment,storageor disposalfacilities andother 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 ofplan.

- 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. Ifthe director exempts classes or categories of hazardous waste treatment, storage or disposal facilities from complyingwiththehazardouswastemanagementplan,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 wastetreatment, storage, or disposal facility in existence on July 1, 1985, shall not require a review under the provisions ofthis 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 hazardouswaste treatment or storage facilities not in existence prior to July 1, 1985; (c) Anyon-sitedisposal ofwasteslistedpursuantto 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 ofthis 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 ofthis 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 ofthe state shall be appointed to serve on site review panels for a period of two (2) years and may be appointed for additional two (2) year periods. In 

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addition, a memberwhois a representativeofthe statemay servebeyond the expiration ofthe 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 ofthe member's term. (b) Three(3) membersshallbe publicmembers appointedby thegovernor withthe advice and consentofthe senate. One (1)public member shallbe

a geologistor hydrologist, one(1) anengineer, andone (1) a representative of industries which generate hazardous waste. One (1) public member shall be on the faculty of an institution ofhigher 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 maybe appointedfor additionalthree (3) yearperiods. (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 facilityis proposedto be located, atleastone (1) of whom shall be

a resident ofthe 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 shallbe residents ofthe countywherethehazardous
waste treatment, storage, or disposal facility is proposed to be located and shall be appointed by the board of commissioners of the county. The 

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# • 93 HAZARDOUS WASTE FACILITY .sITING 39-5813

members serving pursuant to this subsection shall serve until the



# • particularsitinglicense application subjectto theirreview 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 departmentshall be chairman ofeachpanel and shall notify the city council ofthe nearest city and the board ofcountycommissioners of a sitinglicense applicationfiled withthe department, and shallinstructthe city andcounty 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) ofthe ten (0)members ofthe panel shall constitute a quorum for the transaction ofbusiness of the panel and the concurrence of six (6) members of the panel shall constitute a legal action of the panel. All meetings ofthepanelshallbe conductedpursuantto the stateopenmeeting law.

(6) The director shall make staff available to assist a panel in carrying
out its responsibilities.

(7) Members ofthepanelwho are not stateemployees 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 WasteAmendments 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 ofthe applicant; (b) The location of the proposed hazardous waste treatment, storage, or disposal facility; (c) Engineeringor hydrogeologic information to indicate compliancewith 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 adverseregardinghealth, safety, cost and consistencywith 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 ofdeficiency

.

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HEALTH AND SAFETY 94 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 applicationfee. Thefee shallnotexceed seventhousandfive hundreddollars ($7,500) and shall be based on the cost to the department ofreviewing 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 pursuantto this sectionmay be expended by the director to pay the actual, reasonable and necessary costs incurred by the departmentin actingupon a sitinglicenseapplication. 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. Dutiesofdirectorupon receipt ofa sitinglicense 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 directorofthedepartmentoffish and game,thedirectoroftheIdaho state police, and each division within the departmentthathas responsibilityin 

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land, air or water management, and other appropriate agencies. The notice shall describe the procedure and the schedule based on the complexityofthe applicationby which the sitinglicense maybe 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 ofthe 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 therepresentatives ofthe state to the panel and the publicmembers. The chairman shall also notify the applicable county and city for their appointment ofmembers as provided in subsection (3) of section 39-5812, Idaho Code. Within thirty (30) days after the notification, the board of commissioners ofthecounty and the citycouncil shall selectthe members to

serve on the panel. The panel shall be created at thattime and notification ofthe creation ofthe panel shall be made to the chairman. (3) Iftechnical criteria are not applicable,thedirector shall submitto the panel a draftsitelicensewhichincludesconditionsbased on theinformation 

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# • 95 HAZARDOUS WASTE FACILITY SITING 

### 39-5814

submittedin theapplication. The directorshallalso recommendto thepanel 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) Iftechnical 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. Ifthe 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 ofthe facility. The director shall also recommend to the panel that the license be issued or denied. The denial or draftlicense submittal shall be madewithin sixty-five (65) days after a complete application is received. The director shall immediately notify the applicant and the chairman ofthe panel ofthe denial or draft license submittal.

(5) Within ten (10) days after submittal of a draftlicense, the panel shall
meet to review and establish a timetable for the consideration of the draft site license. (6) The panel shall: (a) Seta date and arrange for publication ofnotice of a public hearingin

a newspaperhaving major circulation in thevicinity ofthe 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 hearingheld to receive public commentandinputon the applicationfor a sitinglicense; (b) Publish thenotice notless than thirty (30) days before the date ofthe public hearingand 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 acceptedin writingby the panel for fifteen (15) days after the public hearing date. (8) The panel shall consider, among other things: (a) Therisk and impact of accident during the transportation ofhazardous waste; (b) The risk of fires or explosions from improper treatment, storage, or disposal methods; (c) The impact on local units ofgovernment 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,

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39-5814 HEALTHAND SAFETY 96

permits or other requirements and their potential relationship to the proposed hazardous waste treatment, storage, or disposal facility; (d) The nature ofthe 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 aftercreation, thepanel 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 ofthe panel's recommendation. Ifthe panel recommends different or additional conditions, a clear statement of the need for the condition must be submitted to the director. Ifthe panel recommends denial, a clear statement ofthereasons 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 existingdevelopment

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 ofthe directorpursuant to this chapter may withintwenty-eight (28) days, afterallremedieshavebeenexhaustedunder the provisions of this chapter, seekjudicial 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 arecompiled as §§ 39-4909 are compiled as §§ 39-4410 and 39-6316, reand 41-242, respectively. spectively. 

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# o97 HAZARDOUS WASTE FACILITY SITING 39-5819



### 39-5815. Notice for and creation of panel after nonrejection or approval ofsitinglicense application

- Timetable for consideration ofproposedfacility

- PublichearingNotice

- 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, permitrequirement or other requirement of a city or county shall not prohibit the construction of a hazardous waste treatment, storage, or disposal facility in thatcity 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

### personregulatedundertheprovisions ofthischaptermaydesignate

a record, sitelicense application, otherinformation, or a portion of a record, site license application, or otherinformation furnished to or obtained by the departmentor itsagents,as beingonly for theuseofthedepartmentandthe panel. The material shall then be subject to disclosure according to chapter 3,

### title 9, 

### IdahoCode. [I.C., § 39-5818, 

### as addedby 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 §§ 1,2,46and 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 shallbe establishedby thedepartmentby 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, IdahoCode, or both, asrequired. [I.C., § 39-5819, as addedby 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 approvedfacility.

- (1) Beforeconstructionof a hazardouswastetreatment, 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 competentjurisdiction against the owner of the proposed facility. Ifthe 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 plaintiffin 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 otherremediesprovided by lawfor owners or users aggrievedby 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) Forthe purpose ofassessing damages, thevalue oftherights affected is fixed at the datethe sitinglicense is approved and the actualvalue ofthe rightatthatdateis thebasisfor thedeterminationofthe amountofdamage. 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 atthe date of approval ofthe siting license. (5) Theowneror operatorof a proposedfacility may, atanytimebeforean 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 theplaintifffor any actual damage sustained as a result of construction or operation ofthe 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 

# CUMULATIVE POCKET SUPPLEMENT

IDAHO CODE

Compiled Under the Supervision ofthe Idaho Code Commission

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• PUBLISHER'S NOTE

Amendments to laws and new laws enacted since the publication ofthe bound volume down to and includingthe 2002 regular session are compiled in this supplement and will be found under their appropriate section numbers.

Tobetter 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
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### 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.

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### lexis.com as ofMarch 19,2002.Thesecaseswill be printed in the following reports:
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# o

o

# •

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.

Communicationswith DeceasedPersons memorandum, butnotto the specific commuPriorto Death. nications made by the deceased. Simons v. Testimony was allowed where the wit­ Simons, 134 Idaho 824, 11 P.3d 20 (2000).

nessestestified as to thecontents 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 disclo

### 9·204. Judge orjurormay 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 ofUnitedStatesSupremeCourtas 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

­ Exemptionsin 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, proprietaryinformation. 9-340E. Exemptions from disclosure

- Archaeological, endangered species, libraries, licensing exams. 9-340F. Records exempt from disclosure

­ Draft legislation and supportingmaterials,taxcommission, petroleum clean water trust fund. 9-340G. Exemption from disclosure Records of court proceedings



### 97 

# •

# c

9-315 EVIDENCE 

### 98

SECTION. regarding judicial authorization ofabortion procedures for minors. [9-340H]. [Repealed.] 9-341. Exemptandnonexemptpublicrecords 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. Proofofother official documents.

Fingerprint Cards.

Although the district court erred in admitting the fingerprint cards over defendant's objection for a lackoffoundation, wherethere

was a multitude of other sources ofinformation from which thejury 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 rightto a fair trial or animpartial adjudication; (c) Constitute an unwarranted invasion ofpersonal 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. Investigatoryrecord asusedhereinmeansinformationwithrespect to anidentifiable person or group ofpersons 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) Documentsgivenor requiredby lawto be givento thepersonarrested; (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, sheriffor municipal police department. (3) 

### Wheneveritis madeto appearby verifiedpetitionto thedistrictcourt of the county where the records or some part thereof are situated that certain investigative records are beingimproperlywithheld 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 shouldnotdo so. The court shalldecidethecaseafterexaminingthe record in camera, papers filed by the parties, and such oral argument and additional evidence as the court may allow.



# • Ifthe court finds that the public official's decision to refuse disclosure is notjustified, he shall order the public officials to make the record public. If the judge determines that the public official was justified in refusing to maketherecordpublic,he shallreturntheitemto thepublicofficial without disclosing its content with an order supporting the decision refusing disclosure.

### Any personwho fails to obey the orderofthe court shallbe 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 HearingTestimony.

-AbsentWitness.

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, aftermailinga subpoenato thewitness andreceivingthereceipt, theprosecutionlost track of him,·and made no effort to use the procedure set forth in section 19-31)05(2) to

secure the attendance ofthe 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 ofReview.

The basis of defendant's objection to the admission of preliminary hearing testimony, while not setforth 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).

# o

9-337 EVIDENCE 100

9-337. Definitions.

- As used in sections 9-337 through 9-347, Idaho Code: (1) "Copy" means transcribingby handwriting, photocopying, duplicating machine andreproducingby anyothermeans so long as the public record is not altered or damaged. (2) "Custodian"means the personhavingpersonal custody and control of the public records in question. Ifno 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) "Investigatoryrecord" 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 punishviolations 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,jointventure, stateor local agencyor any otherrecognizedlegal 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) "Publicofficial"means any state, county, local district, independent publicbody 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 andboardor any committeeof a state agencyincluding those in the legislative or judicial branch, except the state militia. 

# o9-338 

# • 101 PUBLIC WRITINGS
[(14)](13) "Writing" includes,butis notlimited to, handwriting, typewrit­ ing, printing, photostating, photographing and every means of recording, includingletters,words, pictures, soundsor symbols or combinationthereof, 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 amendedby two 2000 acts - ch. 342, § 1, and ch. 368, § 1,botheffective July 1,2000,which do not conflict and have been compiled together.

The 2000 amendment by ch. 342, § 1, inserted "or independentpublic 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 ofthe custodian ofthe 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 ofanypublic record shall give the person,
on demand, a certified copy ofit ifthe 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 publicrecord, exceptto verify theidentityof a personrequestinga record in accordance with section 9-342, Idaho Code, to ensure that the requested record or informationwill notbe usedfor purposesof a mailingor telephone listprohibitedby section 9-348, IdahoCode, or asotherwiseprovidedby 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 ofthe right granted under this act. (6) Nothingherein contained shallpreventthe custodianfrom maintaining such vigilance as is required to prevent alteration of any public record while it is being examined. (7) Examinationofpublicrecordsundertheauthorityofthis sectionmust 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 workinghours. (8)(a) Apublic agencyor independentpublicbody corporate andpoliticor public official may establish a copying fee schedule. The fee may not exceedthe actual costto the agency ofcopyingthe record ifanotherfee is not otherwise provided by law. The actual cost shall not include any administrativeor laborcostsresultingfrom locating andproviding a copy of the public record; provided however, that a public agency or indepen­ dentpublicbodycorporate andpolitic or publicofficial mayestablisha 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) Forprovidinga duplicateof a computertape, computerdisc, 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 ofthe 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 ofthe cost of copying. Any moneyreceivedbythepublicagencyorindependentpublicbody 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 ofgovernmentor itsrecords would sufferby the
assessment or collection of any fee.9-339 

# • 103 PUBLIC WRITINGS

(9) Apublic agency or independentpublicbodycorporateandpoliticshall
not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any ofits duties or functions. (10) Nothing contained herein shall prevent a public agency or independentpublicbodycorporateandpoliticfrom disclosingstatisticalinformation thatis not descriptive ofanidentifiableperson or persons. [I.C., § 9-338, as addedby 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 ofpublic 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 agencyor independentpublicbodycorporate andpolitic thata longerperiod oftime 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) Ifthe 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) Ifthe public agency or independent public body corporate and politic denies the person's requestfor examination or copyingthepublicrecords or denies in part and grants in part the person's request for examination and copying ofthe 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 ofthe request for the public record. (4) The notice ofdenial or partial denial shall state thatthe 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 politichas had an opportunityto consultwith 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'srightto appealthe denial or partialdenial and the timeperiodsfor doing so. [I.C., § 9-339, as addedby 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 exemptfrom disclosure. [Repealed.]

Compiler'snotes.This sectionwhichcom­ 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 containedin courtfiles ofjudicialproceedings, the disclosure ofwhichis prohibitedby or underrules adoptedby theIdahosupremecourt, butonlyto the extentthatconfidentialityis provided under suchrules, and anydrafts or otherworkingmemorandarelatedtojudicialdecision-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), IdahoCode, undertheconditions setforth 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 uponrequestin a mannerdeterminedby thecourtto persons and governmental and private agencies and institutions conducting pertinent research studies or having a legitimate interest in the protection, welfare andtreatmentofthejuvenilewho is thirteen (13) years of age or younger. If the juvenile is petitioned or charged with an offense which would be a criminal offense ifcommitted by an adult, the name, offense ofwhich the juvenile was petitioned or charged and disposition of the court shall be subjectto disclosure asprovidedin section20·525, IdahoCode. Additionally, facts containedinanyrecords of ajuvenilemaintainedunderchapter5,title 20, IdahoCode, shallbe furnished uponrequestto anyschool districtwhere thejuvenile is enrolled or is seeking enrollment. (3)(a) The following records ofthe department ofcorrection:

(i) 

### Records of'which the public interestin 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 ofthe 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 notbe disclosed to any otherprisoner or probationer. (b) Records ofbuildings,facilities, infrastructures andsystemsheldby or in the custody of any public agency only when the disclosure of such information wouldjeopardize 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. Forpurposes ofthis section "system" shall mean electrical, heating, ventilation, air conditioning and telecommunication systems. (c) Records ofthecommissionofpardons andparole shallbe exemptfrom public disclosure pursuant to section 2O-213A, Idaho Code, and section 20-223, Idaho Code. Records exempt from disclosure shall also include thosecontainingthenames, addresses andwritten statements ofvictims. (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 shallbe made available upon request only to thegovernor, thechairmanofthesenatejudiciaryandrulescommittee, andthechairman ofthe house ofrepresentativesjudiciary, 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 welfarepursuantto its statutoryresponsibilitiesdealingwiththeprotection ofchildren, the rehabilitation of youth, adoptions and the commitment of mentally ill 

### persons.

(7) Records including, but not limited to, investigative reports, resulting from investigationsconductedintocomplaintsofdiscriminationmadeto the Idaho human rights commission unless the public interest in allowing inspection and copying of such records outweighs the legitimate public or privateinterestinmaintainingconfidentialityofsuchrecords.Apersonmay 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 containinginformationobtainedby themanageroftheIdaho
state insurance fund pursuantto chapter 9, title 72, Idaho Code, from or on behalfofemployers 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 ofthe 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 subjectto the provisions oftheAmericans with disabilities act, 42 U.S.C. 12112, or other statutory limitations, provided the employer presents a written authorizationfrom 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 interestin maintainingthe confidentialityofsuch records, as determined by a civil court of competentjurisdiction. 

# 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 anotherprisoner 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 underchapter 10, title72, IdahoCode. [I.C., § 9-340B, as addedby 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 sectionwasamendedby 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 amendmentby 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 sectionwas 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 "stategovernmentagency" 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 amendmentby ch. 367, § 1, in the Sections 2 and 4 of S.L. 1999, ch. 249, are first sentenceofsubdivision (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 ofpardons 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 untilJanuary 1, 2003.]

- The following records are exempt from disclosure: (1) Except as provided in this subsection, all personnel records of a currentor former publicofficialotherthanthepublicofficial's public service

or employment history, classification, pay grade and step, longevity, gross salaryandsalaryhistory, status,workplace andemployingagency. All other personnel information relatingto a public employee or applicantincluding, but not limited to, information regarding sex, race, marital status, birth date, home address andtelephonenumber, applications, testingand scoring materials, grievances, correspondence and performance evaluations, shall not be disclosed to the public without the employee's or applicant's written consent. Apublic official or authorized representative mayinspect 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 memberfinancial and membershiprecords and mortgage portfolio loan documents maintained by the public employee9-340C EVIDENCE 108

retirement system. Financial statements prepared by retirement system staff, funding agents and custodians concerningthe investmentof 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 ofthe state lotteryfor 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 depositorfor 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 administeringthe tax, except such information to the extent disclosed in a written decision ofthe 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 anenvironmental 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 securityinformation and unemploymentinsurancebenefit 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 bodycorporateandpoliticpursuantto a statutoryrequirementfor 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 ofthe number and types ofmatters considered and their disposition. (10) The records, findings, determinations

.and decisions of any prelitigationscreeningpanelformed underchapters 10 and23, title 6,Idaho Code. (11) Complaintsreceived by theboardofmedicine andinvestigations 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 ofpharmacy under section 37-2730A, Idaho Code, records ofpsychiatric care or treatment and professional counseling records relating to an individual's condition, diagnosis, care or treatment, providedthe provisions ofthis subsection makingrecords exemptfrom 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 offirearms, 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 ofthefinancial statusofprisonerspursuantto subsection(2) of section 20-607, Idaho Code.

(17) Records oftheIdahostatepoliceor departmentofcorrectionreceived

or maintained pursuant to section 19-5514, Idaho Code, relating to DNA databases and databanks. (18) Records ofthedepartmentofhealthandwelfarerelatingto a survey, resurvey or complaint investigation ofa licensed nursing facility shall be exemptfrom disclosure. Suchrecords shall,however, be subjectto disclosure

as publicrecords 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 andinformation contained in theregistry ofimmunizations against childhood diseases maintained in the department of health and welfare, including information disseminated to others from the registry by the department ofhealth and welfare. (20) Records oftheIdahohousingandfinance 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 IHFAwith regard
to obtaining and servicing mortgage loans and all records relating to the review, approval or rejection by the IHFAof said loans; (c) Mortgage portfolio loan documents; (d) Records of a current or former employee other than the employee's durationofemploymentwiththe association, positionheld andlocation of employment. This exemption from disclosure does not include the con­ tracts of employment or any remuneration, including reimbursement of expenses, ofthe executive director, executive officers or commissioners of the association.All otherpersonnelinformationrelatingto an association employeeor applicantincluding,butnotlimitedto, informationregarding
sex, race, marital status,birthdate, home address andtelephonenumber, 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 

# o

consent. An employee or authorized representative may inspect and copy that employee's personnel records, except for material used to screen and testfor employmentor materialnot subjectto 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 ofdomestic violence, as defined in chapter 63, title 39, Idaho Code, that can be used to locate anyindividuals in the childsupportcaseexceptin responseto a court order. (22) Records oftheIdaho statebarlawyer's assistanceprogrampursuant 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 addedby 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 afterJanuary 1, 2003 (provided 30, § 4, effectiveJuly 1, 1999which 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 effectiveJuly 1, 1999, which 2002, ch. 329, shall be in full force and effect do not conflict and have been compiled toon and afterJuly 1, 2002 andnullandvoid 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 "includingprescriptions, drug orders, records or any other prescription information that specifically identifies an individual patient,"preceding "records ofpsychiatric 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 ofpharmacy under section 37-2730A, Idaho Code," preceding "records ofpsychiatriccare or treatment"; and redesignated former subdivision [19)(18)

as present subdivision (19); and made minor stylistic changes.

The 2000 amendment by ch. 294, § 1redesignatedformer 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 independentpublic 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 "departmentoflawenforcement"; 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 §§ 37-2730Aand 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 Medicineis directedto begin rulemakingpursuant 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 ofpractice 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. [EffectiveJanuary 1,2003untilJanuary 1, 2008.]

- Thefollowing records

are exempt from disclosure:

(1) Except as provided in this subsection, all personnel records of a currentor former publicofficial otherthanthepublic official's public service

or employment history, classification, pay grade and step, longevity, gross salaryand salaryhistory, status,workplace and employingagency. All other personnel informationrelatingto a public employee or applicant including, but not limited to, information regarding sex, race, marital status, birth9-340C EVIDENCE 112

date,home address andtelephonenumber, applications,testingand scoring materials, grievances, correspondence and performance evaluations, shall
notbe disclosed to the public without the employee's or applicant's written. consent.Apublic official or authorized representative mayinspect 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 memberfinancial 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 concerningthe investmentofassets 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 ofthe 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 

# o 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 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 environmentalor 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 securityinformation 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 bodycorporate andpoliticpursuantto a statutoryrequirementfor 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 ofthe number and types of matters considered and their disposition. (10) The records, findings, determinations and decisions of any prelitigationscreeningpanelformed underchapters 10 and23, title6, Idaho Code. (11) Complaintsreceivedby theboardofmedicine andinvestigations 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 ofthe department ofhealth 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 ofpharmacy under section 37-2730A, Idaho Code, records ofpsychiatric care or treatment and professional counseling records relating to an individual's condition, diagnosis, care or treatment, provided the provisions ofthis subsectionmakingrecords exemptfrom 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 offirearms, 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 ofthefinancial statusofprisonerspursuantto subsection(2) of section 20-607, Idaho Code. (17) Records oftheIdahostatepolice or departmentofcorrectionreceived

or maintained pursuant to section 19-5514, Idaho Code, relating to DNA 

# • databases and databanks

.

# C)

9-340C EVIDENCE 114



### (18) Records ofthedepartmentofhealth andwelfarerelatingto a survey, resurvey or complaint investigation of a licensed nursing facility shall be exemptfrom disclosure. Suchrecords shall,however,be subjectto disclosure

as publicrecords as soon as thefacility in questionhas received the report, and no laterthan the fourteenth day following the date that departmentof 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 informationcontained 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 ofhealth and welfare. (20) Records oftheIdahohousingandfinance associationOHFA) 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 submittedto 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 ofemploymentwiththe association,positionheld andlocationof employment. This exemption from disclosure does not include the con­ 

# o

tracts of employment or any remuneration, including reimbursement of expenses, ofthe executive director, executive officers or commissioners of the association.All otherpersonnelinformationrelatingto anassociation employeeor applicantincluding,butnotlimitedto, informationregarding
sex, race, marital status,birthdate, home address andtelephonenumber, 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 personnelrecords, exceptfor material used to screen and testfor employmentor materialnot subjectto disclosure elsewherein 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 ofdomestic violence, as defined in chapter 63, title 39, Idaho Code, that canbe used to locate anyindividuals in thechild supportcaseexceptinresponseto a court order. (22) Records oftheIdaho statebarlawyer's assistanceprogrampursuant 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 createdby chapter20, title57, IdahoCode, togetherwith anyreports,analyses and compilations created from such information and records. [I.C., § 

### 9­ 

# o

# • 115 PUBLIC WRITINGS 

### 9-340D

340C, as addedby 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 ofthis act shall be null, void purposes ofpromulgationofrules 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 afterJuly 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, computerprogram, 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 beingreadily ascertainable by proper
meansby otherpersonswho canobtaineconomicvaluefrom itsdisclosure
or use; and (b) Is thesubjectofeffortsthatarereasonableunderthecircumstancesto maintain its secrecy. (2) Productionrecords, housingproduction, rental andfinancing records, sale or purchaserecords, 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 informationfor regulatorypurposes or its admissibilityin any enforcement proceeding. (3) Records relating

### tothe appraisal ofreal property, timber or mineral rightspriorto itsacquisition, saleor leaseby a publicagencyor independent public body corporate and politic. (4) Anyestimatepreparedby a public agencyor independentpublicbody corporate and politic thatdetails the cost of a publicproject until suchtime

as disclosed or bids are opened, or upon award ofthe contractfor construe­

, tion ofthe public project. (5) Examination, operatingor 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 supervi­9-340D 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 ofIdaho. (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 statementsandbusinessinformationandreports 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 ofseed companies, seed cropgrowers, 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, thatifa seed crophas been identified as diseased or has been otherwise identifiedby 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 pertainingto 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 ofcivil 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 sealedby 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 canbe made, or availability ofsuchinformationifused, 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 independentpublic body corporate and politic for its own use. As 

### used in this subsection, "computerprogram"means a series ofinstructions

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 ofthe program; or (c) The mathematical or statistical formulas that would be used if the manipulated forms ofthe original data were to be produced manually. (16) Active investigativerecords andtrademarkusageauditsoftheIdaho 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 Idahopotato commission duringa trademarkusage 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 ofthat 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 

# • cember31,1997.]

- As usedin this chapter: lated

.9-340E EVIDENCE 

### 118 

# o

_"(2) 'Environmental agency' shall mean any department or division ofthe state, local governmentor healthboardwith authorityto 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 activityor animpacton environmental media.

"(4) 'Environmental audit report'means a set of documents, each labeled 'EnvironmentalAudit Report'(or a substantive equivalent label), and prepared as a resultof 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 auditreport may include memoranda and documents analyzingportions 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, wateror airfor the protection ofhuman health, wildlife, other biota, or the environment.

"(6) 'Person' means any individual, firm, association, partnership,jointstockcompany, trust,estate,localgovernmentalentity,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 entityor itscontractorsand/orsubcontractors in theperformance,operationor management of governmental activities, programs, functions, facilities or sites.

"(7) 'In camera review' means a hearing or review in a courtroom,hearingroom or chambers, to whichthegeneralpublicis notadmitted. After suchhearingor review, the content ofthe oral andotherevidence and statements ofthejudge, hearingofficer and counsel shall be heldin confidence bythoseparticipatingin

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 otherrecords identifyingthelocation ofarchaeological or geophysical sites or endangered species, ifnot already known to the general public. (2) Archaeological and geologic records concerning exploratory drilling, logging, mining and otherexcavation, when suchrecords arerequiredto be filed by statute for the time provided by statute. (3) The records of a library which, when examined alone, or when examinedwithotherpublicrecords, would revealtheidentityofthelibrary patron checking out, requesting, or using an item from a library. (4) The material of a library, museum or archive whichhas been contributed by a privateperson, to the extent of any limitation thatis a condition ofthe 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

testingprocedurebeforetheexaminationis given iftheexaminationis 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 riskthattheresultmightbe affected. [I.C., § 9-340E, as added by 1999, ch. 30, § 6, p. 41.]



### 9·340F. Records exemptfrom disclosure

- Draftlegislation and supportingmaterials, tax commission, petroleumclean 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 purposeofplacingsuchdraftlegislationintoa form suitablefor introduction as official proposedlegislation ofthelegislatureofthe state ofIdaho, 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 supportingmaterials comprisingtheworkpapers in the possession of the legislative services office or the director of legislative performance evaluationspriorto release oftherelatedfinal auditand all otherrecords or materials in thepossession ofthe legislative services office or the director of legislative performance evaluations thatwould otherwisebe confidential or exempt from disclosure. (3) Records consisting ofdraft congressional and legislative redistricting plans and documents specificallyrelated to such draftredistrictingplans or research requests submitted to the commission staffby a member of the commission for reapportionment for the purpose of placing such draft redistrictingplanintoform suitablefor presentationto thefull 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 ofthe Idaho petroleum clean water trust fund obtained pursuant to section 41-4904, 41-4908, 41-4910A, 41­ 4911 or 41-4911A, Idaho Code. Providedhowever, thatthis subsection shall not prevent the Idaho petroleum clean water trust fund's submittal to the Idaho department ofenvironmental quality, or other regulatory agencies of information necessary to satisfy an insured's corrective action requirement under applicablefederal or state standardsin the eventof a releaseintothe 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, 41-4933,41-4935,41-4940or 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 ofcourt proceedings regarding judicial authorization of abortion procedures for minors. - In accordance with section 18-609A, Idaho Code, the following records are exemptfrom public disclosure: records contained in courtfiles of judicial proceedings regardingjudicial authorization of a minor's consentto

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.­ Ifany public record contains materia! which is not exempt from disclosure 

# o

as well as material which is exempt from disclosure, the public agency or 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 suchnonexempt material is contained in the

same publicrecord as the exemptmaterial. [I.C.,

# * 9-341, as addedby 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 ofa 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 pertainingto that person. Within ten (10) days ofthe 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

proceduresfor appealinga refusalto amend shallbe thesameas those set forth in sections 9-343 and 9-344, Idaho Code, and the court may award reasonablecosts and attorney'sfees to theprevailingpartyor parties,ifit finds thatthe requestfor amendmentor refusalto amendwasfrivolously pursued. (3) 

### Therightto inspect and amend records pertainingto oneselfdoes not include the right to review: (a) Otherwise exempt investigatory records of a public agency or independent public body corporate and politic ifthe 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 ofpardons 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 The2000amendmentby ch. 368, § 2, in the amended by two 2000 acts - ch. 342, § 8 and lastsentenceofsubdivision (2)(b), substituted ch. 368, § 2, botheffectiveJuly 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 oftrade secrets. - (1) To

### the extentrequired by the federal clean air act and the resource conservation and recovery act for state primacy over any delegated or authorized programs, even ifthe 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 operatingpermit; (c) The name and address of any applicant or permittee for a hazardous waste treatment, storage, or disposal facility permitpursuant to chapter 44, title 39, Idaho Code; and 

# • (d) Any other record required to be provided to or obtained by the departmentofenvironmentalqualitypursuantto thefederal cleanairact and the resource conservation and recovery act, and the**impleme~ting**

# C)

9-342A EVIDENCE 122

state statutes, federal regulations and state rules, unless the record is a trade secret. (2) For purposes ofthis section, a record, or a portion of the record, is a "trade secret" ifthe 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 ofenvironmentalqualityandidentifiedby thepersonproviding 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) Nothingin this section shallbe construed aslimitingthe 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 saryto carryouttheprovisions ofstateor federal law, or whenrelevantto any proceeding thereunder;

. (b) As determined necessary by the director of the department of envi­ ronmentalquality(undera continuingconfidentialityclaim)to protectthe 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 ofthe 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 shallhave the burdenofdemonstratingthatthe 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 ofenvironmental quality pursuant to the provisions of this chapter for the disclosure of information for which a trade secret claim has been made, and the informationhas not been demonstrated to be a trade secret to the satisfaction ofthe director of the department of environmental quality, within three (3) working days of receiptoftherequestfor thedisclosureoftheinformationthedepartmentof environmental quality shall provide a written requestfor substantiation to the person making the confidentiality claim. Aresponse shall be submitted to thedepartmentofenvironmentalqualityby thepersonclaimingthetrade secretprotectionwithinten(10)workingdays afterreceiptoftherequestfor substantiation or the information subject to the claim shall be disclosed without further notice. Upon receipt ofa 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



### ofthe response, the director ofthe department ofenvironmental 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, withinthree (3) workingdays afterreceipt oftheresponse, the directorof the departmentofenvironmental quality shallinformtheperson making theconfidentialityclaimofthedetermination.The decisionshallbe 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 contestingthedecision ofthedirectorofthedepartmentofenvironmental quality to release information claimed to be a trade secret shall be filed withinten (10) workingdays from thedateofreceiptofthewrittennotice 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 courtorderhasbeenissuedfindingthattheinformationis not

a trade secret and all appeals ofthat 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 ifit finds the claim ofconfidentiality or the decision of the director ofthe 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 oftrade secrets, includingprocedures to train all employees on the proper handling oftrade secrets; and (b) Any other provisions necessaryto carry out this section. (9) As itrelates to thedepartmentofenvironmentalquality, 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'snotes. 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 instituteproceedingsin thedistrictcourtofthecountywheretherecords or
some part thereofare 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 independentpublicbody corporateandpolitic's decision shallbe filed within

one hundred eighty (180) calendar days from the date of mailing of the notice ofdenial or partial denialby thepublic agencyor independentpublic body corporate and politic. The time for responsive pleadings and for

# c 9-346 EVIDENCE 124

hearingsin suchproceedingsshallbe setby the courtattheearliestpossible time, or inno eventbeyond twenty-eight(28) calendardays from thedate of filing. (2) The public agency or independent public body corporate and politic shall keep all documents or records in question until the end ofthe 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 ofjudicial or administrative adjudicatoryproceedings, subjectto 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, shallnot 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 otherfederal, civil or administrativeproceeding. [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'snotes. 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. 

# o

9-346. Immunity.

- No public agency or independent public body 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 publicrecord governedby theprovisions ofthis chapterifthe public agency
or independentpublicbodycorporate 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 independentpublicbodycorporate and politic shall adoptguidelinesthat 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. Prohibitionondistributionorsaleof

### matlmgortelephone numberlists

- Penalty.

- (1) Except as provided in subsections (2), (3), (4), (5), (6), (7) and (8) ofthis section, in orderto protectthe privacyofthose 

# o9-348



# '. 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 ofpersons without first securing the permission of those on the list; and (b) No list ofpersons preparedby the agency or independentpublicbody corporate andpolitic maybe used as a mailinglistor a telephone number listexceptby the agency or independentpublicbody corporate andpolitic

or another agency without first securing the permission of those on the list. (2) Except as maybe otherwiseprovidedinthis chapter, this sectiondoes
not prevent an individual from compiling a mailing list or a telephone numberlistby examinationor copyingofpublicrecords, originaldocuments

or applications which are otherwise open to public inspection. (3) The provisions of this section do not apply to the lists of registered electors compiledpursuantto title 34, Idaho Code, or to lists ofthenames 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 ofaccess eitherby Idaho law enforcement agencies or, by purchaseor otherwise, ofpublicrecords 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 otherrelevant information ofIdaho businesses or individuals requesting information regarding the state of Idaho or to business lists developed by the departmentofagriculture, division ofmarketinganddevelopment, 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) Ifa courtfinds 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 shallbe 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'snotes. 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,