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REVISED ATTORNEY GENERAL'S
 

STATEMENT FOR FINAL
 

AUTHORIZATION OF CHANGES TO THE
 

FEDERAL RCRA PROGRAM THROUGH JULY 1,2003
 

I hereby certify, pursuant to my authority as Deputy Attorney General assigned to represent the 

Idaho Department of Environmental Quality (lDEQ) and in accordance with Section 3006(b) of the 

Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste 

Amendments of 1984 (42 U.S.C. 6901 et seq), and 40 CFR Part 271, that in my opinion, the laws of 

the State of Idaho provide adequate authority to carry out the revised program set forth in the revised 

"Program Description" submitted with Idaho's 7/1/01 to 7/1/03 Revised Authorization Application. 

The specific authorities provided are contained in statutes or rules lawfully adopted and effective at the 

time this Statement is signed. This certification amends and supplements the Attorney General's 

Statement dated July 5, 1988, as amended and supplemented by letter dated June 3, 1989 and Attorney 

General's Statements dated February 13, 1992, December 29, 1994, September 16, 1996, October 3, 

1997, April 6, 2001 and September 11,2002. 

Regulatory Equivalency 

As set forth below, the provisions of the Hazardous Waste Management Act of 1983, Idaho 

Code §§ 39-4401, et seq., and the Idaho Department ofEnvironmental Quality Rules and Standards for 

Hazardous Waste, IDAPA 58.01.05.000, et seq., adopted pursuant to that statutory authority, meet 

federal requirements for equivalency and final authorization. IDAPA 58.01.05.000, et seq., was 

adopted and effective in the State of Idaho on March 20, 2004, and incorporates by reference all 

delegable final Federal hazardous waste regulations promulgated as of July 1,2003 (Idaho Code §§ 39­

4401, et seq., 39-106, 67-2402, 67-2406, 39-103, 39-104, 39-105). 

The Idaho Department of Environmental Quality also seeks full authorization of the Post 

Closure Rule promulgated by EPA on October 22, 1998 (63 FR 56710) and incorporated by reference 

by Idaho on April 5, 2000. At this time, IDEQ seeks authorization for 40 CFR 270.1(c)(7), 

Enforceable documents for post-closure care, 40 CFR 265.121 Post-closure requirements for facilities 

that obtain enforceable documents in lieu ofpost-closure permits, 40 CFR 265.11 O(c), and 40 CFR 

265.118(c)(4). These provisions are described in the rule preamble at 63 FR 56712 section a. Postclosure care under alternatives to permits. IDEQ has previously received authorization for 40 CFR 

Sections 264.90(t), 264.110(c), 264.140(d), 265.90(t), 265.11O(d), and 265.140(d), as described in the 

rule preamble at 63 FR 56713, b. Remediation requirements for land-based units with releases to the 

environment. IDEQ has also received previous authorization for 40 CFR 270.28, as described in the 

rule preamble at 63 FR 56713, c. Post-closure permit information submission requirements. 

IDEQ now seeks authorization for 40 CFR Sections 264.90(e), 264.90(t), 264.l10(c), 

264.1 12(b)(8), 264.112(c)(2)(iv), 264.1 18(b)(4), 264.118(d)(2)(iv), 264.140(d), 265.90(t), 265.11 Oed), 

265.112(b)(8), 265.118(c)(5), 265.l40(d), 270.l(c) introduction, and 270.28 where those sections 

reference the use of enforceable documents. 

Idaho Revised Authorization Application
 

September 22, 2004
 

Page-l
 
Enforceable Documents for Post-closure Care Authority 

• I. 40 CFR271.16 (e) 

40 CFR 271.16 (e) governs what authorities the state must have in order to obtain 

authorization for the use of enforceable documents for post-closure care. 40 CFR 271.16 (e) provides: 

Any State authority used to issue an enforceable document either in lieu of a 

post-closure permit as provided in 40 CFR 270.1(c)(7), or as a source of 

alternative requirements for regulated units, as provided under 40 CFR 264.90(f), 

264.110(c), 264.l40(d), 265.90(d), 265.llO(d), and 265.l40(d), shall have 

available the following remedies: 

(1) Authority to sue in courts of competent jurisdiction to enjoin any 

threatened or continuing violation of the requirements of such documents, 

as well as authority to compel compliance with requirements for 

corrective action or other emergency response measures deemed 

necessary to protect human health and the environment; and 

(2) Authority to access or sue to recover in court civil penalties ... 

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Under Idaho's Environmental Protection and H-ealthAct (EPHA) Idaho Code § 39-108, the 

legislature gave the Department authority to sue in court to recover civil penalties and enjoin 

violations. Such authority applies to any enforceable document entered into by the Department. The 

Department may enter into consent orders to require corrective action and if the terms of the consent 

order are not met, sue in court. The Department routinely enters into these orders for all of its 

programs including the Hazardous Waste Program. The Department also has available authority to 

issue Compliance and Schedule Orders under Idaho code § 39-116. 

A. Consent Orders 

Idaho Code § 39-108 provides for administrative enforcement actions which result in entry of a 

consent order: 

(iv) If the recipient and the director agree on a plan to remedy damage caused by 

the alleged violation and to assure future compliance, they may enter into a 

consent order formalizing their agreement. The consent order may include a 

provision providing for payment of any agreed civil penalty. 

The statute also addresses the effect ofthe consent order: 

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(v) Effect of consent order. A consent order shall be effective immediately 

upon signing by both parties and shall preclude any civil enforcement action for 

the same alleged violation. If a party does not comply with the terms of the 

consent order, the director may seek and obtain, in any appropriate district court, 

specific performance of the consent order and such other relief as authorized in 

this chapter. 

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Idaho Revised Authorization Application
 

September 22, 2004
 

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40 CFR 271.16 (e) requires the Department to have the authority to sue in courts of competent 

jurisdiction to enjoin any threatened or continuing violation of the requirements of such documents. 

The Hazardous Waste Management Act (HWMA) Idaho Code § 39-4413 and the EPHA, Idaho Code § 

39-108 provide the Director with the authority to seek such action in court without first resorting to 

administrative action. The same subsection also provides that the Director has the authority to compel 

compliance with requirements for corrective action or other emergency response measures deemed 

necessary to protect human health and the environment as well as collect civil penalties. 

In addition to consent order authority, Idaho Code § 39-116 meets the 271.16 (e) requirement 

because that statute allows for emergency order authority to compel immediate compliance outside of 

the judicial process. 

B. Compliance Schedule and Order Authority 

Idaho Code § 39-116. Provides: 

COMPLIANCE SCHEDULES. The director shall have the authority to issue 

compliance schedule orders to any person who is the source of any health 

hazard, air contaminant, water pollution or solid waste for which regulatory 

standards have been established, including regulatory standards then in effect or 

to become effective at a future date or at future successive dates. The purpose of 

any compliance schedule order shall be to identify and establish appropriate acts 

and time schedules for interim actions by those persons who are or who will be 

affected by regulatory standards, such acts and schedules being designed to 

assure timely compliance by those affected by the regulatory standards ... 

This provision meets the requirements of271.16(e) as it is a quick non-judicial method for the 

Director to immediately require compliance. In the case of a violator who refused to go through postclosure where an imminent health hazard existed, the Director can use this authority to compel 

compliance with the post-closure rule. 

II. 40 CFR 265.121/Public Participation 

The Department must comply with the public participation requirements of 40 CFR 265.121. 

40 CFR 265.121 (b)(I) provides: 

The Regional Administrator, in issuing enforceable documents
 

under Sec. 265.121 in lieu of permits, will assure a meaningful
 

opportunity for public involvement which, at a minimum, includes public
 

notice and opportunity for public comment:
 

(i) When the Agency becomes involved in a remediation at the 

facility as a regulatory or enforcement matter; 

In 2000 the Department adopted 265.121 by reference in its Rules and Standards for 

Hazardous Waste at IDAPA 58.01.05.000 et seq. Thus, the Department is already bound by § 265.121 

Idaho Revised Authorization Application
 

September 22, 2004
 

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and is required to provide public participation in the event the Department uses alternative authorities 

in lieu of a post-closure permit. The Department's Rules do not indicate what the process by which the 

public participation must be carried out. The process should be no different than the process which 

the Department uses to ensure public participation in the Rules for Decision Making. Those Rules are 

found at IDAPA 58.01.05.013. 40 C.F.R. § 265.121 does not insist on any particular process, only that 

there be public participation. 

III. 3008 Authorities 

The Department has the equivalent of 3008 Authorities. 

A. 3008 (a) Authority. 

42 USC 6928 (a) [SWDA § 3008 (a)] requires that when the administrator has information 

regarding violation ofthe subchapter that the Administrator issue an order assessing a civil penalty and 

require compliance. Alternatively the Administrator is empowered to commence and action directly in 

Court for appropriate relief which may include injunctive relief. 

Idaho Statutes meet this requirement in several ways as was made clear in Idaho's original 

authorization packet. (See Attorney General's Statement dated July 5, 1988) First, as discussed 

above, the Department is authorized to issue a Notice of Violation and assess penalties under the 

EPHA Idaho Code § 39-108 and the HWMA, Idaho Code § 39-4414. Under Idaho Code § 39-116 

the Director could also order the violator to effect a cleanup. Finally, under the EPHA, Idaho Code § 

39-108 (b) and the HWMA, Idaho Code § 38-4413 (3) the Director is not required to assess penalties 

or issue orders, but may go straight to a Court to enjoin violations of the EPHA. 

Under 3008 (a)(3) the Order must not exceed $25,000.00 for a single violation. Under Idaho 

Law the maximum penalty assessed for a hazardous waste violation cannot exceed $10,000.00 for each 

violation. 

B. 3008 (h) Authority. 

The Department maintains that because 3008 (h) equivalency isn't required for authorization 

for the post closure rule for which Idaho is currently authorized, there is no legal reason why the 

Department needs 3008 (h) equivalency in order to obtain authorization for the use of. enforceable 

documents in lieu of permitting to address post closure care issues. Nonetheless, the Department has 

3008 (h) equivalency. 

42 USC § 6928 (h) [SWDA § 3008 (h)] addresses hazardous waste releases from permitted 

facilities (one in Idaho) or a facility in interim status. The statute allows the Administrator to " ... 

issue an order requiring corrective action or such other response measure as he deems necessary to 

protect human health or the environment... " Alternatively, the Administrator is allowed to proceed 

directly with a civil action in District Court. 

Any 3008 (h) order may also include a suspension or revocation of authorization to operate. 

Finally, 3008 (h) imposes a fme not to exceed $25,000.00 ifthe violator does not comply with the 

corrective action order. 

Idaho Revised Authorization Application
 

September 22, 2004
 

Page-4
 
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Idaho authorities address all of these requirements. As discussed above Idaho Code § 39-116 

allows the Director to impose Schedule and Criteria Orders for cleanups in cases of hazardous waste 

releases. Further, Idaho is currently authorized for corrective action. (57 Federal Register 11580). In 

addition, the Department may proceed directly to court under either the EPHA or the HWMA to 

enforce any releases into the environment. 

Finally, the Department is allowed to suspend or revoke permits (or authorization to operate in 

the case of interim status facilities) under Idaho's adoption by reference of 40 CFR § 264-265. In 

addition the Schedule and Criteria statute, Idaho Code § 39-116 and HWMA § 39-4409 allow the 

Director to suspend authorization to operate. The suspension continues in the event of an appeal to the 

Board ofEnvironmental Quality until final resolution unless the Board does not stay the suspension. 

IV. State CERCLA Authority is Not Required for Enforceable Document Authorization. 

EPA has previously indicated that CERCLA authorities are not absolutely necessary to 

implement alternative authority authorization. 

"EPA recognizes that there are many authorities which could be used to impose or 

oversee corrective action at any given facility. Typically, these authorities include 

RCRA orders and permits, state cleanup orders, and voluntary and independent actions. 

In some cases, CERCLA authorities are available. The Agency is concerned to date, it 

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has not taken full advantage ofthe work of other programs in the RCRA corrective 

action program. In principle, EPA believes that when a facility is being adequately 

addressed it should not matter what authority is used or what Agency is overseeing the 

cleanups. "(61 FR 19456) 

The above referenced Federal Register citation shows that EPA tacitly understands not 

every state will have its own CERCLA like authorities. There is no requirement anywhere in 

the Federal Register or the Code of Federal Regulations that indicates a state must have its own 

CERCLA type laws in order to receive authorization for alternative authorities for post-closure 

care. Quite the contrary, EPA has recognized that there are "many authorities" that may be 

appropriate and as long as facility cleanups are adequately being addressed. While Idaho does 

not have its own CERCLA authority it does have other authorities under the HWMA which can 

adequately address post-closure care even if the facility is not, like those situations where 

CERCLA is utilized, subject to RCRA enforcement. 

Finally, EPA has not required state CERCLA authority in other states where EPA 

authorized use of enforceable documents for post-closure care under 40 CFR 265.121. 

Colorado is currently authorized for 265.121 authority and has no state equivalent ofthe federal 

CERCLAlaw. 

Idaho Revised Authorization Application
 

September 22, 2004
 

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v. Idaho's Hazardous Waste Management Act Addresses Interim Status Perceived Problems. 

The Department can address corrective action at facilities that either lose their interim status or 

have never attained such status. For example, there should be no concern about a non-permitted TSD 

facility that is subject to post closure requirements. If the facility is subject to post closure the 

Department can require corrective action. Because they are subject to closure requirements the 

Department could require corrective action facility wide, including any solid waste management units 

(SWMUs) onsite. The Department would issue a NOV, then require a consent order in which all the 

requirements of 40 CFR 265.121 are met. If the facility does not enter into a consent order, the 

Department would use its order authority to require a cleanup. (Idaho Code § 39-116) Alternatively, 

the Department would issue a Part B call in and if that failed seek the same in court. If there had been 

one-time or accidental releases prior to RCRA's enactment, RCRA would not normally apply. If that 

were the situation the Department could still compel cleanup under Idaho Code § 39-4408 as discussed 

below. 

The Department can a Iso require corrective a ction at a non-permitted facility with a surface 

impoundment that can't be clean closed. For example, a landfill with units containing listed or 

characteristic wastes that are not being used for active waste management after the listing or 

identification effective date could be compelled under Idaho statute to institute corrective action. 

Those units would not be subject regulation under Part 264 or 265. The inactive units that are located 

at facilities otherwise subject to Subtitle C interim status or permitting requirements would be SWMUs 

and subject to corrective action under RCRA § 3004 (u) or 3008 (h). While it is true that in similar 

situations EPA CERCLA cleanup authorities would normally be utilized, the State of Idaho does not 

have state CERCLA authority. Idaho does, on the other hand have, Idaho Code § 39-4408. That 

statute provides: 

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 amanner that the waste, or any constituent thereof, 

may enter the environment, unless the department has issued said person a permit or a 

variance as required for the specific activity involved or exempted the activity from 

permit requirements. 

The definition of hazardous waste contained in Idaho Code § 39-4403 is not limited to RCRA 

wastes. The definition is broad and could be applied to any situation where a waste poses a threat to 

human health or the environment. Again, in this situation the Department would issue a NOV and 

require the facility to sign a consent order. If the facility refused to sign a consent order, the 

Department would use its order authority under § 39-116 or seek injunctive relief in court. 

Idaho Revised Authorization Application
 

September 22, 2004
 

Page-6
 
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Federal Citation 

State Rule 

Citation 

(IDAPA) 

State Statutory 

Citation 

(Idaho Code) 

State 

Analoe; is: 

Equivalent 

and/or 

Broader in 

Scope 

40 CFR Part 260 

All subparts as of July 1, 2003, except 40 CFR 260.2. For 

the purposes of 40 CFR 260.20, "Federal Register" shall be 

defined as the Idaho Administrative Bulletin. 

58.01.05.004 

Effective 03/20/04 

39-4405 

Revised as of 200 1 

Equivalent 

40 CFR Part 261 

All subparts including appendices as of July 1,2003. 

Idaho has adopted a state-specific rule which delists 

chemically stabilized K061 waste at U.S. Ecology ofIdaho, 

Inc. 

58.01.05.005 

Effective 03/20/04 

39-4407 

Revised as of 1993 

Equivalent 

40 CFR Part 262 

All subparts as of July 1, 2003 and that advance notification, 

annual reports, and exception reports in accordance with 

262.53,262.55, and 262.56 shall be filed with the EPA 

Regional Administrator and the Director ofIDEQ shall be 

copied. All references to EPA in 262.51, 262.54(g)(I) and 

262.57(b) shall remain defined as EPA. In addition to the 

Emergency Notification Requirements in 40 CFR 

262.34(a)(4), the State Communications Center must also be 

contacted at 1-800-632-8000. 

58.01.05.006 

Effective 03120/04 

39-4411 

Revised as of 1998 

Equivalent 

40 CFR Part 263 

All subparts as of July 1, 2003. 

58.01.05.007 

Effective 03/20/04 

39-4410 

Revised as of2000 

Equivalent 

40 CFR Part 264 

All subparts as of July 1, 2003 except 264.149,264.150, 

264.301(1). All references to the Regional Administrator in 

264.12(a) shall be defined as the EPA Regional 

Administrator. 

58.01.05.008 

Effective 03/20/04 

39-4409(3) 

Revised as of 1988 

Equivalent 

40 CFR Part 265 

All subparts except Subpart R, 265.149, 265.150, as of July 

1,2003. All references to the Regional Administrator in 

265.12(a) shall be defined as the EPA Regional 

Administrator. 

58.01.05.009 

Effective 03120/04 

39-4409(3) 

Revised as of 1988 

Equivalent 

40 CFR Part 266 

All subparts as of July 1, 2003. 

58.01.05.010 

Effective 03120/04 

39-4405 

Revised as of 2001 

Equivalent 

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Idaho Revised Authorization Application
 

September 22, 2004
 

Page-7
 
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Federal Citation 

State Rule 

Citation 

(IDAPA) 

State Statutory 

Citation 

(Idaho Code) 

State 

Analog is: 

Equivalent 

and/or 

Broader in 

Scope 

40 CFR Part 268 

All subparts except 268. I(e)(3); 268.5; 268.6; 268.42(b); 

268.44 (a)-(g) as of July 1,2003. If the Administrator of 

EPA grants a case-by-case variance pursuant to 268.5, that 

variance will simultaneously create the same case-by-case 

variance in the equivalent Idaho rule. 

58.01.05.011 

Effective 03/20/04 

39-4405 

Revised as of2001 

39-4408(4) 

Revised as of 1986 

Equivalent 

40 CFR Part 270 

All subparts as of July I, 2003. For purposes of 40 CFR 

270.2,270.5, 270.1O(e)(2), 270.1O(e)(3), 270.10(t)(3), 

270.72(a)(5) and 270.72(b)(5), EPA shall remain defined as 

EPA. 

58.01.05.012 

Effective 03/20/04 

39-4409(3) 

Revised as of 1988 

Equivalent 

40 CFR Part 273 

All Subparts as ofJuly 1,2003. 

58.01.05.016 

Effective 03/20/04 

39-4405 

Revised as of2001 

Equivalent 

40 CFR Part 279 

All subparts as of July 1,2003. 

58.01 .05.015 

Effective 03/20/04 

39-4405 

Revised as of 200 I 

Equivalent 

40 CFR Part 124 

Subparts A and B as of July 1,2003, except that 40 CFR 

124.19, the fourth sentence of 40 CFR 124.3I(a), the third 

sentence of 40 CFR 124.32(a), and the second sentence of 40 

CFR 124.33(a) are expressly omitted from the incorporation 

by reference of each of those subsections. For purposes of 

40 CFR 124.6(e), 124.10(b) and 124.10(c)(I)(ii) EPA shall 

remain defined as EPA. 

58.01.05.013 

Effective OS/21/04 

39-4405(4) 

Revised as of2001 

Equivalent 

RCRA §3005(j) 58.01.05.014 

Effective 03/15102 

39-4405 

Revised as of 200 I 

Equivalent 

RCRA §3006(f) 58.01.05.997 

Effective 04/05100 

9-337, et seq. 

Revised as of2004 

39-4411(3) 

Revised as of 1998 

Equivalent 

Dated: September 22, 2004. 

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Idaho Revised Authorization Application
 

September 22, 2004
 

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