# APPENDIX XI

# 2004 

# CUMULATIVE POCKET SUPPLEMENT

IDAHO CODE

Compiled Underthe Supervision ofthe Idaho Code Commission

THOMAS A. 

### MILLER RICHARD GOODSON R. 

### DANIEL BOWEN COMMISSIONERS

MAX M. SHEILS, 

### JR. EXECUTIVE SECRETARY

TITLES 39(44-87), 40

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orsuggested improvements or additionsyouwill find postpaid cards in the back ofthe 2004 Replacement Index Volumes.



### Place this supplement in the pocket ofthe corresponding volume ofthe set



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### -800-833-9844TITLE 39


### HEALTHAND SAFETY

C!W'TEJl. 44. liAz...umous WASrE MANAGEMENT, § 39- 4427. 45. NA'l'tIRALDEATHAer, §§ 39-4504,39-4505, 39-4507. 55. CLEAN INDOORAIR, §§ 39-5501- 39-5504, 39-5506,39-5507,39-5511.
57. PREvErmON OF MINORS' AcCESS TO ThBACCO, §§ 39-5702, 39-5710, 39-5714

- 39- 5718. G1. IDAHO CONRAD J-l VISA WAIVER PROGRAM, §§ 39-6101

- 39-6118.
63. DOMESTIC VIOLENCE CRIME PREVENTION, §§ 39-6303, 39-6306A. 65. WASTE TIRE DISPOSAL, §§ 39-6501

- 39- 6508. 71. ltu.umous SUBSTANCE EMERGENCY REsPONSE Aer, §§ 39-7103,39-7104, 39-7110, 39- 7112. CHAPI'ER. 78. 'IbBACCO MAsn:R SETrLEMENT AcREEMENI', §§ 39-7803

- 39-7805.
80. UNIFORM PuBuc ScHOOL BUILDING SAFETY, § 39-8006.
81. BASIN ENVIRONMENTAL IMPROVEMENT At:r, § 39-8106. 84. 'IbBACCO MAsn:R SE'lThEMENT AcREEMEN'T COMPLEMENTARY Aer, §§ 39-8401

- 39- 8407. 85. LAKE PEND ORElLLE, PENn OREILLE RIvER,
PRIEST1.AxE AND PRIEST RlVER COMMISSION, §§ 39-8501

- 39-8504. 86. IDAHO ELEVATOR SAFET'i CODE Ac::r, §§ 39- 8601

- 39-8622.
87. IDAHO COMMONSENSE CONSUMPTION Mr, §§ 39-8701

- 39-8706.



### CHAPTER 44

HAZARDOUS WASTE MANAGEMENT

SECTION. 39·4427. Commercial disposal fees.

39-4427. 

### Commercial disposal fees.

- (1) 

### There is imposed on the

owneroroperatorofevery commercial hazardous waste disposal facility or site permittedunder 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 orfraction thereoffor all 

### hazardous wastes as defined by RCRAor section 39-4407, 

### Idaho Code; (b) Twenty-five dollars ($25.00) 

### per gate ton or fraction thereoffor all manifested wastes not otherwise defined in this subsection; (c) Two dollars ($2.00) 

### per gate ton orfraction thereoffor all manifested remediation wastes not otherwise defined in 

### this subsection; (d) Twenty dollars ($20.00) 

### per gate ton or fraction thereoffor the first two thousand five hundred (2,500) 

### gate tons orless ofwastes receivedby

a facility or site from the same site, property or hazardous waste management unit 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 thatbecome subject to regulation solely as a result ofa removal or remedial action taken in response to environmental contamination; or (iv) are hazardous wastes that result from corrective action or closure of a regulated or nonregulated hazardous waste management unit; (e) Ten dollars ($10.00) 

### per gate ton or fraction thereoffor all wastes containedinparagraph (d) ofthis subsection, ifthewastes arereceivedby

1

### 39-4427 HEALTHAND SAFETY 

### 2

the samefacility orsite andarefromthe same site, propertyorhazardous waste management unit in 

### an amowit greater than two thousand five hundred (2,500) gate tons up to twelve thousand five hundred (12,500) gate tons; 

### (fJ Five dollars ($5.00) per gate ton or fraction thereof for all wastes contained in 

### paragraph(d) ofthis subsection, if

### thewastes arereceivedby the 

### same facility orsiteandarefromthe same site, propertyorhazardous waste managementunitin an amountgreaterthan twelve thousand five hundred (12,500) gatetons up to twenty-fivethousand (25,000) gatetons; (g) Two dollars and fifty cents ($2.50) per gate ton orfraction thereoffor all wastes containedin paragraph (d) ofthis subsection, if

### the wastes are received by the same facility or site and are from the same site, property

orhazardous wastemanagementunitin an amountgreaterthantwentyfive thouslmd (25,000) gate tons; (h) Five dollars ($5.00) per gate ton orfraction 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 ofthe United States; or(iii) arePCBs in 

### concentrationsless thanfifty (50)parts permillion andnototherwiseregulatedbyIdaho orfederal law;'or(iv) are

. wastes not otherwise defined in 

### this subsection.

(2) Thefees setforth in 

### subsection(1) ofthis sectionshallnotapplytoany ofthe following types ofwastes: (a) Wastes generated or disposed ofby a public agency or other person operating a household hazardous waste collectionprogram;

- (b) Wastes generated or disposed ofby any agency ofthe state ofIdaho.

Any waste for which the fees are waived under the provisions ofthis section mustbe noted as fee-waived waste on thereturn required in 

### section 39-4428, Idaho Code, and is subject to all audit provisions of section 39-4429, Idaho Code. (3) For wastes disposed ofby any agency ofthe state ofIdaho at any commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, the director, pursuantto a written agreement with the director, the owner or operator ofany such facility or site, may crediton the return required in section 39-4428, Idaho Code, and in 

### thefee remitted, an amount equal to the actual cost charged by such owner or " operatorpergate ton orfraction thereoffor the characterization, collection, identification, transportation, treatment, storage and disposal ofwastes at such facility or site. [I.C., § 39-4427, am. and redesig. 1999, ch. 290, § 2, p. 718; am. 200l,ch. 297,§ 2,p. 1072; arn. 2002,ch. 176,§ l,p. 522; am. 

### 2004, ch. 117, § 1, p. 

### 391.]

Compiler's notes. Section 2 ofS.L. 2004, ch. 117 declared. an emergency. Approved March 19, 2004.

# IDAHO CODE

CONTAINING THE 

# GENERALLAWS OFIDAHO

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

MAXM. SHEILS, JR. 

### EXECUTIVE SECRETARY



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

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### Th better serve our customers, by making our annotations more current, LexisNexis has changed the sources that are read to create annotations for this publication. Rather than waiting for cases to appear in printed reporters, court decisions are now being read as they are released by the courts. A consequence ofthis more current reading ofcases, as they are posted on 

### lexis.com, is that the most recent cases annotated may not yet have print reporter citations. These will be provided, as they become available, through later publications.

This publication contains contains annotations taken from decisions of the enacted by the Idaho Supreme Court and the Court ofAppeals, and the appropriate federal courts, posted on 

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

cases will be printed in the following reports:

Pacific Reporter, 3rd Series Federal Supplement, 2nd Series Federal Reporter, 3rd Series United States Supreme Court Reports, Lawyers' Edition, 2nd Series Additionally, annotations have been taken from the following sources: American Law Reports, 5th Series, through Volume 93 American Law Reports, Federal Series, through Volume 173 Opinions ofAttorney General, 2001-3 Following is an explanation ofthe abbreviations ofthe CourtRules used throughout the Idaho Code.
LR.C.P. Idaho Rules ofCivil Procedure LR.E. Idaho Rules ofEvidence I.C.R. Idaho Criminal Rules M.C.R. Misdemeanor Criminal Rules LLR. Idaho Infraction Rules LJ.R. Idaho Juvenile Rules LC.A.R. Idaho CourtAdministrative Rules IAR. Idaho Appellate Rules
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iii

### TITLE 39


### HEALTHAND SAFETY

CHAPI'EIl. 44. liAzAmlous WNml MANAGEMENT, §§ 39· 4401

- 39-4432. 45. NATUllAL DEA". Aer, §§ 39·4501

- 39- 4509.
46. IDAHo DEVELOPMENTAL DISABILITIES SERVICES

. AND FAGILITIES Acrr, §§ 39-4601

- 39· 4608. 47. REaP"" CAllE SERVICES. [REpEALED.j A47. PERsoNAL CARE SERVICES. IAMENDED AND REDESIGNATED.] 48. 1N>ruNIzAnoN, §§ 39·4801

- 39-4804. 49. iDANO!hAL". P!.ANmNG Acrr, §§ 39-4901

- 39-4904. 150j 49. EQUAL OPl'ORTUNITY FOR DIRPLACED HOKRMAKER Acrr, §§ 139·5001)

- 39· 5009. 51. FAMILY SUPPORT AND IN-HoME AssrsrANCE, §§ 39-5100

- 39·5106. 52. DoM:ESTICVIOLENCE PRoJECTGRANTS, §§ 3{}" 5201

- 39·5213. 53. ADULT ABUSE, NEGLECT AND EXPLOrrA110N Acrr, §§ 39·5301

- 39·5312. 54. ARnFIClAL INSEMINATION, §§ 39-5401- 39- 5408. 55. CLEAN INoooRAm, §§ 39·5501-39·5510. 56. PERSONAL CAllE SERVICES, §§ 39·5601

- 39·5609. 57. PftEvENTJON OF MINORS' ACCESS TO 'IbBACCO, §§ 39·5701- 39·5713. 58. llAzARnous WNml FACILITY SITING, §§ 39· 5801

- 39·5820. 59. IDAHORURALHEALTH CARE ACCESS PROGRAM, §§ 39·5901

- 39·5913. 60. CNn.DREN'S TRUSTFuNo, §§ 39-6001

- 39· 6008. 61. IR>:sESVED.] CHAPTER. 62. PCB WASTE DISPOBAL, .§§ 39-6201

- 39- 6216. 63. DOMESTlC VIOLENCE Cmm PmwENnON, §§ 39-6301- 39-6317. 64. CLEAN L.oolsAcrr, §§ 39-6401

- 39-6413. 65. WASTE '!'mE DI8POllAL, §§ 39-6501

- 39- 6507. 66. BIO PAYElTE LAKE WATER QuALITY Aer, §§ 39-6601

- 39-6612. 67

- 69. 1!lEsERVIm.) 70. SALE AND DI8I'OBAL OF BATrEIlIES, §§ 39· 7001- 39·7004. 71. liAzARoous SUBSTANCE EllEROENCY REsPoNSE Acr, §§ 39-7101- 39-7115. 72. IDAHO LAND RioomlAnON Acr, §§ 39-7201

- 39-7210. 73. IR>:sERVED.) 74. IDAHO SoLID WASTE FAGILITIES Aer, §§ 39· 7401

- 39·7421. 75. AooPl10N AND MEDICAL AssISTANCE, §§ 39· 7501- 39·7505. 76. PuBlJC DIUNKING WATER SYmEW LoANS, §§ 39·7601

- 39-7506. '77. VOLUN'l'EER!hAL". CAllE PRoVIDE< hwuNlTY, §§ 39·7701

- 39·7705. 78. 'lbBACCO MAsTER SE'ITLEllENT AOREEMEN1\ §§ 39·7801

- 39-7805. 79. LocAL OmON Swoo: FACn.JT1E8 Srrmo Aer, §§ 39·7901- 39·7916. 80. UNIFORM PuBLJC ScHOOL Bun.nING SAFETY, §§ 39·8001- 39-8012. 81. BASIN ENVIRONllENTAL IMPROVEMENT Am, §§ 39·8101

- 39-8115. 182) 81. IDAHO SAFE HAVEN Acr, §§ 139· 8201)

- 139·8207]. 183j 81. 'l'RAUKA CAllE, §§ [39·830IJ, [39· 8302J.

. 

### CH.APrER44

HAZARDOUS WASTE MANAGEMENT

SECTION. 39·4401. Short title. 39-4402. Legislative findings and purposes. 39-4403. Definitions. 39-4404. Consistency with federal law. 39·4405. Rules in general. 39-4406. General powers aod duties of**direc~** tor. 39-4407. Identification ofhazardous wastes.**39~4408.** Unauthorized treatment, storage, release, use or disposal ofhazardous waste prohibited. 39-4409. Permit requirements for hazardous

1 SECTION. waste treatment, storage, or disposal facilities. 39-4410. Transportation ofhazardouB waste. 39-4411. Records

- Reporting

- Monitor· ing. 39-4412. Inspections

- Right ofentry. 39-4413. Enforcementprocedurea. 39-4414. Remedi

... 39-4416. Violations constituting misdemeanors. 39-4416. Citizen suits. 39-4417. Hazardous waste emergency account.

### 39-4401 HEALTHAND SAFETY 2

SECTION. 39-4417A. {Reserved.} 39-4417B. (Repealed.l 39-4418. Local government notice. 39-4419. lnterstate cooperation. 39-4420. Employment security. 39·4421. Good samaritan protection. 39-4422. Severability. 39-4423. Disposal of restricted hazardous wastes prohibited. 39·4424. Disposal ofmanifested waste. 39-4425. {Reserved.] 39-4426. Appointment ofinspectors. 39-4427. Commercial disposal fees. 39-4427A. (Amended and Redesignated.} 39·4427B

- 39-4427D. [Repealed.} SECTION. 39-4427C. Treatment, storage or disposal facility fee. 39-4427D. Hazardous waste fees

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

- Returns. 39-4429. Books Bnd records to be preserved

- Entry and inspectionby department of environmental quality, 39-4430. Additions and penalties. 39-4431. Collection and enforcement. 39-4432. Distribution ofcommercial disposal fee revenues.



### 39-4401. Short title.

- This act may be Irnown and cited as the "Hazardous Waste ManagementAct of1983." [I.C., § 

### 39-4401, as added by 1983, ch. 154, § 

### 1, p. 416.]

Compiler's notes. The words "this act" refer to S.L. 1983, ch. 154, § 1 which is compiled as §§ 39-.4401 through 39-4422.

Sec. to sec. ref. This chapteris referred to in §§ 9·342A, 39-5804, 39-5809. 39·5819, 39- 7403, 49-2206, 63-3029D and 63-602CC.

Cited in: Idaho v, Hanna Mining Co., 699 F. Supp. 827 (D. Idabo 1987). Collateral References. Amountand char
8 acteristics of wastes as equitable factors in allocation of response costs pursuant to § 113(0(1) ofComprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42U.S.C.A. § 9613(1)(1): multiple waste streams, 162A.L,R. Fed. 371.



### 39-4402. Legislative findings and purposes.

- (1) 

### The legislature ofthe State ofIdaho finds: (a) That continuing technological progress, increases in manufacturing, and the abatement of air and water pollution have resulted in everincreasing 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 Irnowledge and technology necessary for alleviating adverse health, environmental and aesthetic impacts resulting from current hazardous waste management and disposal practices are generally available; and (d) That the problem of proper management of hazardous waste has become a matter ofgreat statewide concern. (2) Therefore, it is hereby declared that the purposes ofthis act are: (a) To protectthe public health and safety, the health ofliving organisms, and the environment from the effects of the improper, inadequate, or unsound management ofhazardous waste; (b) Toestablish a programtotrackand control hazardous wastes from the time they are generated through transportation, treatment, storage, and disposal; and, (c) 

### Th assure the safe and adequate management ofhazardous wastes within the state. [I.C., § 

### 39-4402, as added by 1983, ch. 154, § 

### 1, p. 416.]

### (

3 HAZARDOUS WASTE MANAGEMENT 39-4403

Compiler'snotes. Forwords "this act,tosee Compiler's notes, § 39-4401.

Collateral References. Validity and construction of statutes, ordinances, or regulations controlling discharge of industrial wastes into sewer systems. 47A.L,R.3d 1224. Applicability ofzoningregulations to waste disposal facilities ofstate or local**governmen~** tal entities. 59 A.L.R.3d 1244.



### 394403. Definitions.

- As used in this chapter: (1) "Board" means the Idaho board ofenvironmental quality. (2) "Commercial hazardous waste facility or site" means any hazardous wastefacility whose primary business is the treatment, storage ordisposal, for a fee or other consideration, ofhazardous waste generated off site by generators otherthan the owner and operator ofthe facility. (3) "Department"means the Idaho department ofenvironmental quality. (4) "Director"meansthe directorofthe Idaho departmentofenvironmental 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), ofwaste materialreceived at a facility. This weightdoes notinclude any subsequent changes to the weight resulting from the management ofthe 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 ofa hazardous waste.

(8) "Hazardous waste" means a waste orcombinationofwastes ofa solid, liquid, semisolid, or contained gaseous form which, because ofits 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. Suchwastes include, but are not limited to, materials which are toxic, corrosive, ignitible, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in domestic sewage, orsolid or dissolvedmaterials 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 

### UB.C., section 2011 et seq. (9) "Hazardous waste management" means the systematic control ofthe collection, source separation, storage, treatment, transportation, processing, and disposal ofhazardous wastes. (10) "Hazardous waste facility or site" means any property, structure, or ancillary equipment intended or used for the transportation, treatment, storage or disposal ofhazardous wastes.39-4403 HEALTH AND SAFETY 4

(11) "Injection" means the subsurface emplacement offree liquids. (12) "Manifest" means a form used for identif'ying the quantity, composition, origin, routing, waste identification code(s), and destination ofhazardous waste during any transportation from the point ofgeneration to the point oftreatment, 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 waste manifest orby other manifest requirements designed to assure proper treatment, storage and disposal ofsuch waste. (14) "PCB waste" means anywaste orwaste itemwhichis not included in the definition of "hazardous waste" and which is contaminated with polychlorinated biphenyls. (15) "Person" means any individual, association, partnership, firm, joint stock company, trust, estate, political subdivision, public or private corporation, state or federal governmental department, agency, or instrumentality, or any other legal entity which is recognized by law as the subject of rights and duties. (16) "RCM" means theresourceconservation andrecovery actof1976 as amended from time to time. (17) "Restricted hazardous waste" means a waste or combination of wastes**;:egl.ilat~(f** as

# rand disposaTTestrictedpursuaIltto-feder;'1 statutes and regulations, including 40 CFR part 26S. Restricted hazardous waste also includes byproduct, source, special nuclear materials or devices or equipment utilizing such materials. r!lgulated under the federal atomic energyacto(-19-54, as amended: Restricted hazardous waste shall not inc!llcle.**r);liHQI9gic;iIJ'y-cgntaminate{~~8.te** ..mit..!'rl:aI0rom"Fo;:merly·utilized Sites RemedialActionProgTam (FUSRAP)" sites administeredbythe United States army corps ofengineers andbeing.pisPQS!ldgfj.,,;;rsuant toa contract in eXistence on July 1, 2001, and as 

### may**beren~wed** thereafter. '_

.. (1S) "Storage" means the containment ofhazardous wastes, on a temporary basis or for a period ofyears, in such a manner as not to constitute disposal ofsuch hazardous wastes. (19) "Transportation" means the movement ofany hazardous waste to or from a hazardous waste facility or site. (20) "Transporter" means any person who transports a hazardous waste to or from a hazardous waste facility or site. (21) "Treatment" means any method, technique, or process, including neutralization, which is designed not to be an integral part ofa production process, but which is rather designed to change the physical, chemical, or biological character or composition ofany hazardous waste prior to storage

orfinal disposal so as to neutralize such waste orso as torender 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 is5**~DOUSWASTE~~AGEMENT** 39-4404

intended to be discarded. [I.C., § 39-4403, as added by 1983, ch. 154, § 1, p. 416; am. 1984,ch.205,§ 1,p.502;am. 1986,ch. 148,§ 1,p.415;am. 1986, ch. 324, § 1, p. 794; am 1989, ch. 253, §. 1, p. 626; 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, substi· luted "environmental quality" for "health and welfare" throughout thesection; insubsection (7)(b), substituted "byproduct" for "by prod· uct"; and made stylistic changes.

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

The Resource Conservation and Recovery Act of1976, referred to in subdivision (IS) of this section, is compiled as 42 U.S.C. § 6901 et seq.

Section 2 ofS.L. 1984, ch. 205 is compiled

as § 39-4410.

Section 2 ofS.L. 1986, ch. 148 is compiled

as § 39-4405. Section 2 ofS.L. 1986, ch. 324 is compiled

as § :';9-4423.

Section 2 ofS.L. 1989, ch. 253 is compiled

as § 39-4424.

Section 2 ofS.L. 1994, ch. 419 is compiled

as § 39-4427.

Sections 44 and 46 ofS.L. 2001, ch. 103 are compiled as §§ 39-3638 and 39·4426, respectively.

Sections 2 and 4 ofS.L. 2001, ch. 297, are compiled as §§ 39-4427 and 39-4405, respectively.

Cross ref. Inspection ofhazardous waste carriers, penalties §§ 67·2917, 67-2918.

Sec. to sec. ref. This section is referred to in §§ 18-3905 and 39-4423.



### 39·4404. Consistency with federal law.

- The legislature intends that the state ofIdaho enact and carry out a hazardous waste program that will enable the state to assume primacy overhazardous waste control from the federal government.

The legislature finds thatthe RCRA, as amended, 42 U.S.C., section 6901 etseq., and federal regulations adopted pursuantthereto, 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 oftheregulations whichhave 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 administrator ofthe United States environmental protection agency to implement ReRA. 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 boardrules to do anythingmorethanfollow theinstructions on 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 ofthe environmental protection agency. The board may, however, promulgate procedural rules and rules specifically authorized by this chapter or other state statutes withoutshowing thatthose rules are required by RCRAorthe 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 administrative process ofchapter 52, title 67, Idaho Code. [LC., § 39-4404, as added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 182, § 1, p. 479; am. 1988, ch. 6, § I, p. 6; am. 1988, ch. 259, § I, p. 498; am. 1993, ch. 216, § 27, p. 587; am. 1993, ch. 291, § 2, p. 1082.J

CompHer's notes. This section was amended by two 1993 acts

- ch. 216, § 27 and ch. 291, § 2both effectiveJuly 1, 1993- which do not conflict and have been compiled together.

The amendmentbych. 216, § 27 in thefirst sentence ofthe second paragraph added "federal"following "6901 et seq., and"; inthe third paragraph in the present first through the third sentences deleted "'and regulations"**fol~** lowing "rules"wherever they appeared; in the present fourth sentence deleted "and regulations" foHowing "rules" in the first four places it appears and deleted "rules and" preceding "regulations ofthe environmental protection agency."; and in the present fifth sentence deleted "or regulation" following "Any rule" and substituted "chapter 52, title 67, Idaho Code" fOT "section 67·5201, Idaho Code. et seq."

The amendmentby 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 ofS.L. 1988, ch. 259 is compiled

as § 39·4409.

Section 26 ofS.L. 1993. ch. 216 is compiled

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

Section 3 ofS.L. 1993, ch. 291 is compiled

as § 39·4406.

Section 2 ofS.L. 1986, ch. 182, declared an emergency. Approved April I, 1986.



### 39-4405. Rules in general.

- Pursuantto 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 management ofthe generation, collection, transportation, treatment, storage, and disposal ofhazardous wastes within the state. The board shall also adopt such rules as necessary to regulate persons who produce, bum, 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 oflaw. Such rules shall include, but not be limited to: (1) Criteriafor the determination ofwhetherany waste orcombinationof wastes is hazardous for the purposes ofthis chapter; (2) Rules for those who generate, transport, treat, store, or dispose of hazardous wastes; (3) Rules, consistentwith thoseissued bytheUnited States environmental protection agency and the United States department oftransportation, for containerization, labeling and manifesting ofhazardous wastes; (4) Rules specifying the terms and conditions under which the departmentshall 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 oftogether; (6) Procedures and requirements for the reporting of the generation, transportation, treatment, storage or disposal ofhazardous 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 storage tanks, as maybenecessaryto protect human health and the environment;

### 7 HAZARDOUS WASTE MANAGEMENT 39-4407

(9) Rules specif'ying radioactive materials or other radioactive materials occurring naturally that may be disposed of at a commercial hazardous
wastefacility orsite. [I.C., § 39·4405, as added by 1983, ch._154, § 1, p. 416;

am. 1986, ch. 148, § 2, p. 415;**~:.2()Q1,** ch. 297, § 4, p. 1072.J

-**"""-~-_._---_._** .•..

## _---- Compiler's notes. Sections 1 and 3 of8.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 ofS.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 management in 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 ofhazardous 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 ofS.L. 1993, ch. 291 is compiled as § 39-4404.

39-4407. Identification ofhazardous wastes.

- (1) The board shall establish criteria for determining ifany waste or combination ofwastes is hazardous or nonhazardous, for the purposes ofthis chapter. (2) The board may adopt, and amend from time to time a hst 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 protectionagency. 'Ib accomplish this goal, theboard may adoptbyreference the regulations containing the lists of hazardous wastes and the set of characteristicsfor identif'yinghazardous wastes promulgated bythe United States environmentalprotection agency pursuantto RCRA. The board shall update the regulations adopted pursuantto 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. 1082.1

Compiler's notes. SectlOn 5 ofS.L. 1993, Sec. to sec. ref. This section**j~** 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 ofhazardous 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 departmenthas issued saidperson a permitora variance as requiredforthe specific activity involved or exempted the activity from permit requirements. (2) Effective six (6) months after the effective date [July 1, 1986] ofthis provision, nonhazardous liquids shall not be disposed ofin 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) Placementin the owner oroperator's landfill will notpresenta riskof contamination ofany existingorpotential 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 ofignitibility, shall not be used for dust suppression or road treatment. (4) The board shall have authority to prohibit: (a) Land disposal ofany hazardous waste; and (b) Storage ofany hazardous waste prohibited from land disposal, unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery. treatment or disposal. [I.C., § 39-4408, as added by 1983, ch. 154, § 1, p. 416: am. 1986, ch. 148, § 3, p. 415.J

Compiler's notes. Section 3005{c) of Section 2 ofS.L. 1986. ch. 148 is compiled ReRA referred to in subsection (2) of this as § 39·4405. section is compiled as 42 U.S.C

.. § 692S(c).

39·4409. Permit requirements for hazardous waste treatment, storage, or disposal facilities.

- (1) No person shall construct, operate,

or modifY a hazardous waste treatment, storage, or disposal facility or site without a permitfrom the department. The owner oroperator ofthe facility

or siterather than the builder shall be responsiblefor obtaining the permit. Permits may contain such conditionsnecessarytoprotecthuman health and environment. The board may exempt classes or categories of hazardous waste treatment, storage, or disposal facilities from the permitrequirement 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 state9 HAZARDOUS WASTE MANAGEMENT 39-4409

programis authorizedby the administrator ofthat 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 ofexisting 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 conditions for issuingpermitstothe describedfacilities 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) Educationandtrainingqualifications 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 orsite; (d) Monetary assurances in such form and amount as are necessary for effective management, maintenance, and monitoring ofthe facilities and sites during and after operation; (e) Evidence offinancial 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 plans appropriate to the facilities and sites; (h) Public participation in the permitting process consistent with 42 U.S.C. section 6974Ib). (4) Permits shall beissued for a period notto exceed ten nO) years orthe maximum period allowed under RCRA, whichever is greater. However, permits may be reviewed at least every five (5) years and modified as necessary to take into account changes in this chapter or regulations promulgatedpursuanttoitandimprovementsintechnology. Permits issued to hazardous waste facilities and sites by the department prior to the effectivedate ofthis chaptershallbereissuedto conformwiththeprovisions 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 seeking the permit, regardless of the time when the waste was placed in such unit. Permits issued from November8,1985, until the effective date ofthis provision shall bereissued to conform with this provision.39-4409 HEALTH AND SAFETY 10

(6) Any permit issued under this section may be revoked by the director pursuant to the provisions ofsection 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 ofthe rules and regulations promulgated under this section, if, in thejudgmentof the director, application of the requirements would cause unreasonable hardship and the granting ofa variance would not be harmful to the public interest or inconsistent with RCRA requirements. A variance shall not exceed one (1) year in duration and may be renewed or extended only after the department provides public notice and an opportunity for public comment.

(8)(a) The director ofthe department may issue a research, development and demonstration permitfor anyhazardouswastetreatmenttechnology

orprocess forwhich permitstandards for suchexperimental activityhave not been promulgated. Any such permit shall include such terms and conditions as will assure protection ofhuman health and the environment. Such permits shall: 1. Provide for the construction ofsuch facilities, as necessary, and for operationofthe facility for notlongerthan one (1)year(unless renewed

as provided below); and 2. Provide for the receipt and treatment by the facility ofonly those types and quantities of hazardous waste which the director deems necessary for purposes ofdetermining the efficiency and performance capabilities ofthe technology or process and the effects ofsuch technology or process on human health and the environment; and 3. Include such requirements as the director deems necessary to protecthuman 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 ofinformation to the director with respect to the operation ofthe facility. (b) The director may apply the criteria set forth in paragraph (a) ofthis subsection in establishing the conditions ofeach permit without separate establishment ofregulations implementing such criteria. (c) For the purpose ofexpediting review and issuance ofpermits under this subsection, the directormay, consistentwith the protection 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. Apermit shall not be renewed

more than three (3) times. 

### Il.e., § 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.J11 HAZARDOUS WASTE MANAGEMENT 39-4410

Compiler's notes. This section was amended by two 198a acts which appearto be compatible and have been compiled together.

The amendment by ch. 7, in the first sentence ofsubsection (5), inserted "issued"; and added subdivision (8)(d).

The amendment by ch. 259, in subdivision (2Xb), inserted "'existing interim status surface impoundments"; and in the firstsentence ofsubsection (S). inserted "issued." The words enclosed in parentheses so appeared in the law as enacted.

Section 5 ofS.L. 1986, ch. 148 is compiled

as § 39·4411.

Sections 1 and 3 ofS.L. 1988. ch. 259 are compiled as §§ 39-4404 and 39-4413, respectively.

Sec. to sec. ref. This section is referred to in §§ 39·4413,39·4426,39·4427.

39-4410. Transportation ofhazardous waste.

- (1) Theboard shall promulgatehazardous waste transportation rules andregulations to control the intrastate andinterstatetransportation offederallyregulated types and quantities ofhazardous waste. Therules andregulations shall beconsistent with the rules and regulations issued by the United States department of transportation and theUnited States environmental protection agency. The rules and regulations shall also beconsistentwith the rules andregulations of the Idaho public utilities commission unless such consistency would impair the primacy or the effectiveness of the state's hazardous waste managementprogram. In that case 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 ofthe state's hazardous waste management program. Rules and regulations so promulgated by the board shall prevail over conflicting rules and regulations ofthe commission.

(2) Thehazardouswaste transportationrules 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 ofa 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 offederally regulated types and quantities ofhazardous 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 ofthe shipment and a copy be retained by the transporter for a minimum ofthree (3l years.39-4411 HEALTH AND SAFETY 12

(4) The hazardous waste transportation rules and regulations may provide for special routing ofhazardous waste shipments in this state when necessaryto protectthe publichealth, thepublic safety, orthe environment consistent with federal statutory, regulatory and constitutional requirements.

(5) No commercial hazardous waste disposal facility or site permitted under section 39-4409, Idaho Code, shall receive regulated quantities of hazardous waste as defined by federal law from a motor vehicle or trailer unless the hazardous waste is accompanied by a proper manifest and the transporter has obtained a special permit from the Idaho transportation department as provided in sections 49-2202 and 49-2203, Idaho Code. Ifan improperlydocumented shipmentofhazardous waste arrives ata permitted commercial hazardous waste facility or site, the owner or operator ofthe facility or site shall immediately notifY the Idaho transportation depart-

. ment 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.J

Compiler's notes. Sections 1and 3afS.L. 1984, ch. 205 are compiled 86 §§ 39·4403 and 39·4417B, respectively.

Section 2 ofS.L. 1986, ch. 231 is compiled

as § 39-4417B.

Sections 567 and 569 ofS.L. 1988, ch. 265

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

Section 4 ofS.L. 1993, ch. 291 is compiled

as § 39·4407.

Sections97 and 99 ofS.L. 2000, ch. 469, are compiled as §§ 39-3562 and 39-5814, respectively.

Section 1) of S.L. 1986, ch. 231, read: "An emergency existing therefor, which emergency is hereby declared to exist. Section 49-2512, Idaho Code lamended and redesig· nated 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. The remainingprovisions ofthis act shall be in full force and effect on and after January 1, 1987; provided, however, that the IdahoTransportation Board and Idaho '!ransportation Department shall be authorized to permit any person renewing or purchasing a vehicle registration on and afterJuly 1. 1986, to acquire a vehicle registration endorsement prior to January I, 1987, and any receipts therefrom shall be placed in the Hazardous MateriallHazardous Waste Transportation EnforcementAccount which is created in section 49-2507, Idaho Code (amended and redesignated as § 49·2205J, which is enacted by Section 4. of this act and Section 49·2507, Idaho Code, which is enacted by Section 4 of this actshall be in full force and effect on and after July 1, 1986. Approved April 3, 1986."

Section 586 ofS.L. 1987, ch. 265 provided that the act should become effective on and after January I, 1989.

Crossref. Motor CarrierAct, §§ 61·801- 61·818.

39·4411. Records

- 

### Reporting

- Monitoring.

- (1) Pursuant to the provisions ofsection 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 ofthis chapter. These rules may include, but shall not be limited to, prescribing procedures and requirements for: (a) The establishment, maintenance, and fonnat ofrecords and reports; (b) The submittal ofrecords and reports; (c) The taking ofsamples and the performing oftests and ofanalyses; (d) The use ofapproved monitoring methods and techniques; Ie) The installation, calibration, use, and maintenance of monitoring equipment; and13 HAZARDOUS WASTE MANAGEMENT 39·4411



### ( (D The provision ofrelevant information to the department. (2) Sixty (60) days after promulgation ofthe 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, ordisposal ofa hazardous waste in this state by any person without reporting such activity to the department as required by the rules issued pursuantto subsection (1) ofthis section shall be unlawful. (3) Information obtained by the departmentor 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 ofeach 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 ofsuch wastes shipped for treatment and disposal by landfilling or other means ofdisposal; (c) The types and quantities ofsuch wastes remaining in storage at the end ofthe 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 operatorofeach commercial hazardous wastedisposal facilityorsiteinthe state shall, no laterthan thirty (30)days after the end ofeach calendar year, submit a written annual report to the department providing information on the types and quantities ofwastes received which were generated in Idaho, and information on the types and quantities ofwastes received which were generated in other states. (6) Priorto March 1 ofeach yearthe departmentshall submit a reportto the governor and the legislature detailing the types and 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 andquantities ofsuchwastes remainingin storage atthe end ofthe most recent reporting period and the types and quantities of hazardous waste generated outside this state and shipped intothis state for storage or disposal. [I.C., § 39-4411, as added by 1983, ch. 154, § 1, p.**~16;** 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;arn. 1996,ch. 125,§ l,p. 439; am. 1998, ch. 125, § 4, p. 461.]

Compiler's notes. Sections 4 and 6ofS,L. 1986, ch. 148 are compiled as §§ 39·4409 and 39-4413.

Section 42 ofS.L. 1990, ch. 213 is compiled
as § 39-1393.

Seetion 7 ofS.L. 1993, ch. 291 is compiled

as § 39·4416. Section 3 ofS.L. 1998, ch. 125 is compiled

as § 39-117.

Section 5 ofS.L. 1998, ch. 125 declared an emergency. Approved March 19, 1998.

Section 2 ofS.L. 1996, ch. 125 declared an emergency and provided that the act should 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 uaT)' 1, 1996,Approved March 8, 1996, in § 39-4429.

39-4412. 

### Inspections

- Right of entry.

- (l) All inspections and searches conductedunderthe authority ofthis chaptershallbeperformedin conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution ofthe 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 ofprivate property in the absence of eitherconsentfrom thepropertyowneroroccupierorexigentcircumstances 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 orhave been generated, transported, treated, stored, ordisposed ofto inspect and to secure samples ofsuch wastes, their containers, and their labels; (b) Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other

means ofconveyance where hazardous wastes are orhave been contained to inspect and to secure samples of such wastes, their containers, and their labels; (c) Enter any private or public property, or means ofconveyance, 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 ofa property owner or facility operator, the department shall provide the property owner or facility operator with a receipt for samples taken and a copy ofsample analysis. Duplicate samples shallsimilarlybeprovideduponrequestiftherequesting party agrees to have the samples analyzed and to share the results ofthe analysis with the department. (4) The right ofentry ofa duly authorized state employee orrepresentative shall not be subject to the waiver ofany potential tort liability ofthe facility owner or operator. The right ofentry ofa duly autborized state or health district employee shall not be subject to any confidentiality requirements other than those specified in section 39-4411(3), Idaho Code, and chapter 3, title 9, Idaho Code. The right ofentry 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 departmentorthe United States environmental protection agency. (5) Any magistrate or district court judge is authorized to issue an administrative search warrant upon a request from the director describing15 HAZARDOUS WASTE MANAGEMENT 39-4413

reasonablecause for issuanceofthewarrantortheexistenceofa reasonable program ofinspection. [I.C., § 39-4412, as added by 1983, ch. 154, § 1, p. 416; am. 1990, ch. 213, § 44, p. 480.]

Compiler's notes. Section 45 ofS.L. 1990, ch. 213 is compiled as § 39·5211.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 ofS.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 ofthe act should take effect July 1, 1993 and that §§ 1,2,46 and 47 should take effect July 1, 1990.

39·4413. Enforcement procedures.

- (A) Whenever the director determines that anyperson is inviolationofanyprovision ofthis chapteror anypermit, standard, regulation, condition, requirement,compliance agreement or order issued or promulgated pursuant to this chapter, one or more ofthe following actions may be taken: (1) ADMINISTRATIVE ENFORCEMENTACTIONS. (a) Notice. The director may commence an administrative enforcement actionby issuing awritten notice ofviolation. The notice 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 ofcivil penalty claimed for each violation. The notice ofviolation shall inform the person to whom it is directed ofan 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 contacts the departmentwithin fifteen (15) days ofthe receiptof 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**t~is** 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 orderformalizing their agreement. Theconsentordermayinclude a provision for payment ofany agreed civil penalty. (d) EffectofConsentOrder.Aconsentordershallbeeffectiveimmediately upon signing by both parties and shall preclude any civil enforcement action for the same alleged violation. 

### Ifa party does not comply with the terms of the consent order, the director may seek and obtain in any appropriate district court specific performance ofthe consent order and such other reliefas authorized in this chapter. (e) Failure to ReachAgreement on Consent Order. 

### Ifthe parties cannot reach agreement on a consent order within sixty (60) days after the39-4413 HEALTH AND SAFETY 

### 16
receipt ofthe notice ofviolation, or ifthe recipient does not request a compliance conferencepursuantto subsection (A)(1)(b) ofthis section, the director may commence and prosecute a civil enforcement action in district court, in accordance with subsection (A)(3) ofthis section. (2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS. (a) Grounds. The directormayrevoke ortemporarily suspend the permit ofany hazardous waste facility or site pursuant to the grounds provided in subsection (6) ofsection 39-4409, Idaho Code. Aviolation that is shown to have occurred as the result ofan unforeseeableactofGoddespite a permittedparty's reasonable efforts to comply with all applicable legal requirements shall not be grounds for a suspension or revocation. (b) Notice ofHearing. The director shall commence a permit suspension

orrevocation action by giving a permitted party a written notice ofintent to suspend orrevoke. Thenotice shall inform the permitted party offacts

or conduct which warrant suspension or revocation ofthe 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)(Z)(c) ofthis section shall applyto proceedings initiated under this subsection. Revocation or suspension ofa permit shall become final fifteen (15) days after delivery ofthe notice ofintent to revoke or suspend unless the permitted party requests a hearing. (c) Administrative Hearing Provisions. (i) Upon a timelyrequestby a permitholderfor ahearing toreview the director's action under subsection (A)(2)(b) ofthis section, the director shall promptlyconducta hearing open to the public. Thecontested case provisions ofthe Idaho administrative procedure act shall apply to all hearings conducted under thIs subsection. 

### (iD The director shall have the authority to request from the district courtin and forAda county or any other appropriate district court the issuance of an order in the nature of a subpoena compelling the attendance and testimony ofwitnesses and the production before the director ofpapers, books, drawings, documents, test results, and other evidence relevant to a permit suspension orrevocation investigation or adjudication. (iii) Afterthehearing, the directorshall issue awritten opinion setting forth findings offact, conclusions oflaw and an order. An aggrieved person subjectto thedirector's ordermayseekitsreview as a final order in a district court as provided by the Idaho administrative procedure act. Districtcourtreview ofthedirector's decision shall be limited to the record developed before the director. (3) CIVIL ENFORCEMENT ACTION. The attorney general may commence and prosecute in district court a civil enforcement action. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred, and may be brought against any person who is alleged to have violated any provision of this chapter or any rule, regulation, permit, condition, requirement, consentorder, ororderwhich has become effectivepursuant17 HAZARDOUS WASTE MANAGEMENT 39-4414

to this chapter. Such action may be brought to compel compliance with any provision ofthis chapter orwith any rule, regulation, permit ororder promulgated hereunder, and for any relieforremedies authorized in this chapter. The director shall not be required to initiate or prosecute an administrative action before the attorney general may commence and prosecute a civil enforcement action. In addition, the attorney general may delegate this authority regarding civil enforcement actions to the prosecuting attorney ofthe county where a civil enforcement action may 

### arise. (B) ACTIONS AGAINST GUARANTORS. Ifthe owner or operator is in bankruptcy, reorganization or other arrangement pursuant to the federal bankruptcy code, orwherejurisdiction cannotbe obtained over an owneror 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. [I.C., § 39-4413, as added by 1983, ch. 154, § 1, p. 416; am. 1986, ch. 148, § 6, p. 415; am. 1988, ch. 259, § 3, p. 498; am. 1989, ch. 38, § 1, p. 49.]

Compiler's notes. Thefederal bankruptcy code referred to in subsection (B) of this section is compiled as 11 U.S.C., § 101 etseq.

Section 5 ofS.L. 1986, ch. 148 is compiled

as § 39-4411. Section 2 ofS.L. 1988, ch. 259 is compiled

as § 39-4.409.

Sec. to sec. ref. This section is referred to in §§ 39-4409. 39-4429.

39-4414. Remedies.

- The remedies specified in this section are cumulative and nonexclusive. (l) 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, orusedfor the purpose ofcomplyingwith theprovisions ofthis chaptershall beliable for a civil penaltynotto exceed ten thousand dollars ($10,000) for each separate violation or for each day ofa 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 ofa continuing violation. (c) The imposition or computation ofmonetary penalties may take into account the seriousness ofthe violation, good faith efforts to comply with39-4414 HEALTH AND SAFETY 

### 18

the law, and an enforceable commitmentbythe person againstwhom the penalty is directed to implement a supplemental environmental project. Forpurposes ofthis section, "supplementalenvironmental project"means
a projectwhich thepersonis nototherwiserequired

### to perform andwhich prevents pollution, reduces the amount ofpollutants reaching the environment, contributes to public awareness ofenvironmental matters, or enhances the quality of the environment. In evaluating a particular supplemental environmental projectproposal, preferencemay be givento those projects with an environmental benefit, which relates to the violationorthe objectives oftheunderlyingstatutewhich was violated, 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, monitoring, or surveys which lead to evidence ofthe violation; (b) The state's costs, includingthereasonable value ofattorneys'services, for preparing and litigating the case; (c) The state's costs for mitigating, removing, correcting or terminating adverseeffects upon soil, air, orwaterqualityresulting from theviolation; (d) The state's costs for impounding, storing, and disposing ofcontaminated property; (e) Compensation for damages to publicly held resources including but notlimitedto, land, water, recreational uses, wildlife, fish and aquatic life to restore the resource to its highest previous use; 

### to 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 ofthe case, and all other reasonable costs oftrial preparation and trial ofthe case; tg) Compensation for damages to personal health 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 ofthe case; (h) The imposition or computation ofcosts may take into account the seriousness ofthe violation and good faith efforts to complywith thelaw. (3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF. (a) Any person who violates any provision ofthis chapter or any pennit, standard, regulation, condition, requirement, compliance agreement, or orderissued orpromulgated pursuantto this chapter shall be 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 orprove at any stage of the proceeding that long-term irreparable damage will occur should the injunction or order not be issued orthat the remedy atlaw is inadequate.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 emergencyaccountcreated by section 39-4417, Idaho Code. [I.C., § 39-4414,

as added by 1983, ch. 154, § 1, p. 416; am. 1984, ch. 157, § 1, p. 383; am. 1997, ch. 94, § I, p. 219.]

Compiler's notes. Section 2 ofS.L. 1997 J ch. 94 is compiled as § 39-108.

39·4415. Violations constituting misdemeanors.

- (1) Any person who knowingly makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or used for the purpose ofcomplyingwith the provisions ofthis chapter shall be guilty ofa misdemeanor and subject to a fine ofnot more thantenthousanddollars ($10,000) orto imprisonmentnotto exceedone (1) year, or to both, for each separate violation or for each day ofa continuing violation. (2) Any person who knowingly violates any provision ofthis 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 andprosecutedbythe attorney general. The director shall notberequired to initiate or prosecute an administrative

or civil action before the attorney general may commence and prosecute a criminal action. [I.C., § 39-4415, as addedby 1983, ch. 154, § I, p. 416; am. 1984, ch. 54, § I, 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 onthatperson's own behalfagainst any person alleged to have committed the violation. Aperson commencing an action under this section shall be required to file a bond or equivalent securityin an amount not less than one thousanddollars ($1,000) orin conformancewiththerequirements of rule 65(c) ofthe Idaho Rules of Civil Procedure if injunctive relief is sought.

(2) No action maybecommencedundersubsection (1) ofthis section ifthe departmenthas commenced andis diligentlyprosecutingan administrative, civil, or criminal action to require compliance with the law. Further, no action may be commenced under subsection (1) ofthis section unless the39-4417 HEALTH AND SAFETY 20
plaintiffhas given the department sixty (60) days' notice and substantial evidence ofthe violation upon which the citizens' action is based. However, ifthe department commences an action in a court ofthe state ofIdaho, any interested person mayintervene as providedinrule 24(a) oftheIdaho Rules ofCivil Procedure. (3) In any action under this section, the department may intervene as a matter ofright. (4) When issuing any final order in any action brought pursuant to this section, the court may award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing party, whenever the court determines such an award is appropriate, except that the state of Idaho shall not be required to pay such costs in any citizen suit where the state has become a party. (5) Nothingin this section shallrestrictanyrightwhich a person, orclass ofpersons, may have under any other statute or the common law. [I.C., § 39-4416, as added by 1983, ch. 154, § 1, p. 416; am. 1993, ch. 291, § 7, p. 1082.]

Compiler's notes. Sections 6 and 8 ofS.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 ofmoneys appropriated to the account by the legislature, moneys allotted to the account as a result ofdepartmental compliance proceedings, moneys allotted to the account in a court ordered award or judg]Ilent, moneys allotted to' the**ac~ount** 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 ofa hazardous waste emergency to pay the necessary costs of preventing, neutralizing, ormitigating any threatto thepublichealthorsafety, orto 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) ofthis section. (5) All moneys placed in the accountare herebyperpetually appropriated to the department for the purposes described in subsection (3) of this section. All expenditures from the account shall be paid out in warrants drawn by the state controller upon presentation ofthe 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.J

Compiler's notes. Section 241 of S,L. 1994, ch. 180 provided that such act .should become effective on and after the first Monday in January, 1995 [January 2, 1995J if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 14931

was adopted at the general election held on21 HAZARDOUS WASTE MANAGEMENT 39-4421

November 8, 1994. Since such amendment
was adopted, the amendment to this section by § 74ofS.L. 1994, ch. 180became effective January 2, 1995.

Sections 73 and 75 ofS.L.1994, ch. 180 are

39-4417A. [Reserved.] compiled as §§ 39-422 and 39-7110, respectively.

Sec. to see. ref. This section is referred to in § 39-4414.

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

Compiler's notes. § 39-4417B. which comprised I.e., § 39-4417B, as added by 1984, ch. 205, § 3, p. 502; am. 1986, ch. 231, § 2, p. 627; am. 1997, ch. 313, § 1, p. 926, was repeaJed by S.L. 1999, ch. 290, § 1, p. 718, effective July 1, 1999.



## ( 39-4418. Local government notice. - Apermitfor 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 directorshall havethepower and the duty to encourage cooperative activities between the department and otherstates for theimproved managementofhazardous wastes, and so far as is practical, toprovidefor uniform stateregulations and forinterstate agreements relating to hazardous waste management. The state may enter intosuchagreements withotherstates to 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 ofa 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 knowinglyviolates the provisions ofsubsection (1) of this section shall be liable for damages, costs and attorneys' fees, in addition to any other liability for reliefauthorized by this chapter, by any other statute, orby the common law. [I.C., § 39-4420, as added by 1983, ch. 154, § 1, p. 416.J

39·4421. Good samaritan protection.

- (l) Notwithstanding any provision oflawto the contrary, no personwhoprovides assistance oradvice inmitigating orattemptingto mitigatethe effects ofanactual orthreatened leakage, seepage, or other release ofhazardous waste, or in preventing, cleaning up, or disposing oforin attempting to 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 otherwise be liable therefor; or

### 39-4422 HEALTH AND SAFETY 

### 22
(b) Who receives compensation other than reimbursement for out-ofpocket expenses for services in rendering such assistance or advice. (3) Nothing in section (1) 

### above shall be construed to limit or otherwise affect the liability ofany person for damages resulting from such person's gross negligence, or from such person's reckless, wanton, or intentional misconduct. [I.C., § 

### 39-4421, as added by 1983, ch. 154, § 

### 1, p. 416.]

39-4422. Severability.

- Theprovisions ofthis actareherebydeclared to be severable and ifany provision ofthis act or the application ofsuch provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity ofremaining portions ofthis 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 oflaw to the contrary, no person shall discharge, deposit, inject, dump, spill, leak, or place any restricted hazardous waste, as defined in section 39-4403, Idaho Code, into oron any land or water at a commercial hazardous waste facility or site. (2) The department may issue a variance from the requirements of subsection (1) ofthis section, if, in thejudgmentofthe director, application ofthe requirements would cause undue hardship and the granting ofthe 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 appropriate mannerin the first instance; and (c) The persistence, toxicity, mobility, and propensityto bioaccumulate of such hazardous wastes and theirhazardous constituents. (3)(a) The board shall promulgate rules and regulations specifying those levels or methods oftreatment, ifany, which substantially diminish the toxicityofthewaste orsubstantiallyreduce the likelihood 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 the level orby

a method specified in regulations promulgated under this subsection, such waste or residue thereofshall not be subject to the prohibition in subsection (1) ofthis section and may be disposed ofin a land disposal facilitywhichmeets the requirements ofthis chapter. [I.C., § 

### 39-4423, as added by 1986, ch. 324, § 

### 2, p. 794.J

Compiler's notes. Section 1 ofS.L. 1986, ch. 324 is compiled as § 39-4403.

### (

23 HAZARDOUS WASTE MANAGEMENT 

### 39-4427

39-4424. Disposalofmanifested waste.

- Manifested waste, as that term is defined in section 39-4403, Idaho Code, shall onlybe treated, stored

or disposed of in this state at a permitted hazardous waste treatment, storage ordisposal facility unless the burning ofsuch manifested waste to produceheatis otherwiselawful. [I.C., § 39-4424, as added by 1989,ch. 253, § 2, p. 626.]

Compiler's notes. Section 1 ofS.L. 1989, Section 3 ofS.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 ofenvi· ronmental 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 ofassuring the protection ofthe health and safety ofthe public by monitoring the receipt and handling of hazardous wastes which have been transported by common carrier. (2) All employees ofthe 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, andviolations to anyrules issuedpursuantto section 67-2901A, Idaho Code. (3) All actions brought for violations ofthe provisions ofthis chapter or rules promulgatedpursuantthereto shall be brought as provided forin this chapter.All actions broughtforviolations ofthe provisions oftitle49, Idaho Code, shall bebroughtas providedinthattitle. [I.C., § 39-4426, as addedby 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 ofS.L. 1984, ch. 205 was repealed.

Section 4 ofS.L. 1986, ch. 231 is compiled
as §**49~2201** - 49-2212, and section 2 was repealed.

Sections 568 and 570 ofS.L. 1988. ch. 265

are compiled as §§ 39·4410 snd 40·701.

Section 2 ofS.L. 1999, ch. 383, is compiled
as § 40-510. Sections 45 and 47 orS.L. 2001, ch. 103 are compiled as §§ 39-4403 and 39-4428, re'peetively.

Section 586 ofS.L. 1987. ch. 265 provided that the act should become effective on and afterJanuary I, 1989.



### 39-4427. Commercial disposal fees.

- (1) There is imposed on the

owner or operatorofevery commercial hazardous waste disposal facility or site permitted 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 orfraction 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 thereoffor all manifested wastes not otherwise defined in this subsection;39-4427 HEALTH AND SAFETY 24

(c) Twenty dollars ($20.00)pergateton orfraction thereofforthefirsttwo 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 permillion; (ii) are hazardous debris; (iii) arehazardous wastes thatbecome subjectto regulation solely

as a result ofa removal orremedial action taken in response to environmental 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, ifthe wastes arereceivedby 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 ofthe United States; or (iii) are PCBs in concentrations less than fifty (50) parts permillion and nototherwiseregulated by Idaho orfederal law; or(iv) are wastes not otherwise defined in this subsection. (2) Thefees setforthin subsection (1) ofthis section shallnotapplyto any ofthe 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 ofby any agency ofthe 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 ofby 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 orsite. [I.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.J

Compiler's notes. Former § 39-4427, which compnsed 1984. ch. 205, § 5. p. 502:

am. 1992. ch. 251, § 1, p. 735: am. 1993, ch. 291, § 8, p. 1082; am. 1994, ch. 419, § 2, p. 1310; am. 1995,ch.127, § 1, p. 856; am. 1997, ch. 313, § 2, p. 926; was 3mcnded and reclesignate as § 39·4427A by S.L. 1998. ch. 229, § 1, p. 778.

This section was formerly compiled as § 39- 4427A.

Section 3 ofS.L. 2001, ch. 297, is compiled

as § 39·4403.

### (

25 HAZARDOUS WASTE MANAGEMENT 39-4427C

Section 2 ofS.L. 2002, ch. 354, is compiled

as § 39-5909.

394427A. [Amended and Redesignated.]

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

was amended and redesignated as § 39-4427 4427A. by S.L. 1999, ch. 290, § 2.

394427B

- 394427D. Generator fees

- Treatment, storage or disposal facility fee

- Hazardous waste fees

- Dupli· 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, § I, was amendedbyS.L. 1999, ch. 49, § I, effective July 1, 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, § I, effective July 1, 1999.

39-4427D, which comprised S.L. 1998, ch. 229, § 4, p. 778, was repealed by S.L. 1999, ch. 290, § 1, effective July 1. 1999.

Section 39-4427B as amended by S.L. 1999, ch. 49, § 1 read: "Generator fees. (1) For anygeneratorgeneratingwaste duringcalendar year 1998, there is imposed a generator fee to be remitted to the departmentofhealth and welfare no later than thirty (30) days after the end ofcalendar year 1998, as follows:

"(a) A generator who generates two and two·tenths (2.2) pounds or more of acutely hazardous wasteas definedby 40 CFRsection 261, in any calendar month, or generates
more than two thousand two hundred (2,200) pounds ofhazardous waste at any time in a calendarmonth, shall be subjectto an annual fee oftwo 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 (l) calendar month, shall be subjectto an annual fee ofsevenhundred fifty dollars ($750).

"'(2) The fee set forth in subsection (1) of this section shallnotapplyto generatorswho:

"'(a) Are public or governmental entities; "'(b) Are dry'cleaners; or "'(c) Demonstrate, to the satisfaction ofthe director ofthe department, an inability topay 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 subjectto regulation by the department ofhealth and welfare during calendar year 1998, shall be subject to a five thousand dollar ($5,000) fee to be remitted to the departmentofhealth and welfarenolaterthanthirty(30) days aftertheend ofcalendar year 1998. (2) The fee set forth in subsection (1) ofthis 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 ofthe fee. fl.C., § 39-4427C, as added by 1998, ch. 229. § 3, p. 778.J

Compilerts notes. Section 8 ofS.L. 1998, ch. 229 declared an emergency. Approved March 20, 1998. Sec. to sec. ref. This section is referred to in § 39-4427D.

### 39-44270 HEALTHAND SAFETY 

### 26

·39-44270. Hazardous waste fees

- Duplication.

- (1) 

### Any owner
or operator, generator or treatment, storage or disposal facility subject to

more than one (1) 

### fee undersection 39-4427A, 39-4427B or39-4427C, Idaho Code, shall only be 

### required 

### to pay the highestapplicable fee under anyone (1) ofthose sections. (2) Forpurposes ofthis section, the fee for section 39-4427A, Idaho Code, shall bethe total amountrequired to be paid under subsection (1) 

### ofsection 39-4427A, Idaho Code. [I.C., § 

### 39-44270, as added by 1998, ch. 229, § 

### 4, p. 778.]

Compiler's notes. Section 8 ofS.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 payableinmonthlyinstallments bythe owner, agent, employee, or operator ofsuch hazardous waste facility orsite andremittance shallbe made 

### to the Idaho department ofenvironmental quality on orbefore the fifteenth day of the month next succeeding the end ofthe 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 setting forth such information as the department may require, showing the amount ofthe fee for which the

owner or operator ofthe 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 offiling 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; am. 2001, ch. 103, § 

### 47, p. 253.J

Compiler's notes. Section 46 orS.L. 2001, ch. 103 is compiled as § 39·4426.

Section 8 ofS.L. 1998, ch. 229 declared an emergency. Approved March 20, 1998. Sec. to sec. ref. This section is referred to in § 39-4427.



### 39-4429. Books and records to be preserved

- Entry and inspectionbydepartmentofenvironmentalquality.

- Everypersonorentity subjectto theimposition ofthe fees specifiedin section 39-4427, Idaho Code, shall keep complete and accurate records, including itemized invoices and manifests for federally regulated types and quantities ofhazardous waste ultimately disposed ofat 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 ofat least five (5)years from thedate oftherecords orthedate ofthe entries appearing in the records, unless the department in writing, authorized their destruction ordisposal at an earlierdate. For purposes ofthis chapter, at any time

### (

27 HAZARDOUS WASTE MANAGEMENT 

### 39-4431
during usual business hours, the department or duly authorized agents or employees, may enter any place ofbusiness ofthe owner or operator ofa hazardous waste facility or site where hazardous wastes are disposed and inspectthepremises, therecords requiredto bekeptunderthis chapter, and the hazardous wastes or other chemicals contained therein, to determine whetherornotalltheapplicableprovisions ofsections 39-4427 and 39-4428, Idaho Code, are being fully complied with. Trade secret information obtained by the department under the provisions of this section shall be treated in the same manner as such information obtained under section 39-4411, Idaho Code. Ifthe department, or any ofits authorized agents or employeesis unreasonablydenied free accessoris unreasonablyhinderedor interfered with in making the examination ofa hazardous waste facility or site, thathindrance orinterference shall constitute grounds for suspension

orrevocationofthe facility orsite'spermitbythe directorofthe department of environmental quality under subsection (b) of section 39-4413, Idaho Code. [I.C., § 

### 39-4429, as added by 1984, ch. 205, § 

### 7, p. 502; am. 1998, ch. 229, § 

### 6,p. 778; am. 1999,ch. 290, § 

### 4,p. 718; am. 2001,ch. 103, § 

### 48,p. 253.]

Compiler's notes. Section 7 ofS.L. 1998, ch. 229 is compiled as § 39-4432.

Section 5 ofS.L. 1999, ch. 290 is compiled

as § 39-4431.

Section 49 ofS.L. 2001, ch. 103 is compiled

as § 39-4431.

SectionBofS.L. 1998, ch. 229 declared an emergency. Approved March 20, 1998.
"'Water" and**~Chemical"** Distinguished.

The legislature has indicated by its use of the word "chemica)" in several statutes that watershould notbe considered tobe a "chemical." Moosman v. Idaho Horse Racing Comm'n, 117 Idaho 949, 793 P.2d 181 (1990).



### 39-4430. Additions and penalties.

- The additions, penalties, and requirements provided by the Idaho income tax act, sections 63-3046, 63-3075,63-3076 and 63-3077, Idaho Code, as theynow exist oras 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 andbefor acts, omissions, delinquencies, andrequirements under this chapter. [I.C., § 

### 39-4430, as added by 1984, ch. 205, § 

### 8, p. 502.J

39-4431. Collection and enforcement.

- (1) 

### The collection and enforcement procedures available to the Idaho state tax commission provided by the Idaho income tax 

### act, sections 63-3030A, 63-3038, 63-3039, 63-3040, 63-3042 through 63-3045A, 63·3047 through 63-3065A, 63·3068, 63-3070, 63-3071, 63-3072, 63-3073 and 63-3078, Idaho Code, as they now exist or as they may subsequently be amended, shall apply and be available to the departmentofenvironmental quality for the enforcementofthe commercial disposal fee and for the assessment and collection of any amounts due thereunder. Said sections shall, for the aforementionedpurposes, be considered part ofthis 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.39-4432 HEALTH AND SAFETY 28

(2) The department of environmental quality may be made a party defendant in any action at law or in equity by any person aggrieved by the unlawful seizureorsaleofhis property, orin any suitforrefund ortorecover
an overpayment, butonlythe stateofIdaho shallberesponsibleforanyfinal judgment secured against the department of environmental quality and saidjudgmentshall be paid orsatisfied out ofthe general fund ofthe state. [I.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 Dotes, Section**63~3070** referred to in this section was repealed by S.L. 1989, ch. 363, § 2.

Section 2 ofS.L. 1997. ch. 313 is compiled

as § 39·4427. Section 4 ofS.L. 1999, ch. 290, is compiled

as § 39-4429.

Sections 48 and 50 ofS.L. 2001, ch. 103 are compiled as §§ 39-4429 and 39-5803, respe<:- tively.

39-4432. Distribution ofcommercial 

### disposal fee revenues.

- The

revenues received from the commercial disposal fees imposed by this chapter and any penalties, interest, or deficiency additions, shall be paid

over to the state treasurer by the department to be distributed periodically but no less frequently than quarterly as follows: (1) An amount equal to ninety-five percent (95%) shall be remitted to the general fund ofthe state; and (2) An amountequal to the remaining five percent(5%) shall beremitted to the countytreasurerofthe county orcounties wherethe activity occurred which caused the fees to be assessedpursuant to this chapter. Moneys shall be apportioned to the counties in the same proportional manner in which they were collected. Moneys returned to counties shall be utilized by the county to respond to health and environmental problems which may be caused by hazardous waste emergencies or spills, or improperly handled or packaged hazardous waste. [I.C., § 39-4432, as added by 1984, ch. 205, § 10,p. 502; am. 1989,ch. 419, § 1, p. 1023; am. 1997,ch.313,§ 4,p. 926;

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

Compiler's notes. Section 11 ofS.L. 1984. ch. 205 is compiled as § 67·2917.

Section 6 ofS.L. 1998, ch. 229 is compiled

as § 39-4429.

Section 14 orS.L. 1984, ch. 205 declared an emergency. Approved April 3. 1984. Section 8 ofS.L. 1998, ch. 229 declared an emergency. Approved March 20, 1998.

Sec. to sec. ref. This section is referred to in § 39-7204.

CHAPTER 45

NATURAL DEATH ACT

SECTION. 39-4501. Short title. 39-4502. Statement ofpolicy. 39-4503. Definitions. 39·4504. Livlog will. 39·4505. Durable power of attorney for health care. SECTION. 39-4506. Revocation. 39-4507. Execution ofdirective. 39-4508. Immunity. 39-4509. General provisions.