APPENDIX XI
2004

CUMULATIVE

POCKET SUPPLEMENT

IDAHO CODE

Compiled Under the Supervision of the

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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TITLE 39

HEALTH AND SAFETY

C!W'TEJl.

44. liAz...umous WASrE MANAGEMENT, § 39-

4427.

45. NA'l'tIRAL DEATH Aer, §§ 39-4504,39-4505,

39-4507.

55. CLEAN INDOOR AIR, §§ 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,

PRIEST 1.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

owner or operator of every commercial hazardous waste disposal facility or

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

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

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

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

manifested wastes not otherwise defined in this subsection;

(c) Two dollars ($2.00) per gate ton or fraction thereof for all manifested

remediation wastes not otherwise defined in this subsection;

(d) Twenty dollars ($20.00) per gate ton or fraction thereof for the first

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

a facility or site from the same site, property or hazardous waste

management unit if the wastes: (i) are PCBs regulated under Idaho or

federal law and are in concentrations greater than fifty (50) parts per_

million; (ii) are hazardous debris; (iii) are hazardous wastes that become

subject to regulation solely as a result of a removal or remedial action

taken in response to 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 thereof for all wastes

contained in paragraph (d) ofthis subsection, ifthe wastes are received by

1
39-4427 HEALTH AND SAFETY 2

the same facility or site and are from the same site, property or hazardous

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, ifthe wastes are received by

the same facility or site and are from the same site, property or hazardous

waste management unit in an amount greater than twelve thousand five

hundred (12,500) gate tons up to twenty-five thousand (25,000) gate tons;

(g) Two dollars and fifty cents ($2.50) per gate ton or fraction thereoffor

all wastes contained in paragraph (d) ofthis subsection, ifthe wastes are

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

or hazardous waste management unit in an amount greater than twentyfive thouslmd (25,000) gate tons;

(h) 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

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

. wastes not otherwise defined in this subsection.

(2) The fees set forth in subsection (1) ofthis section shall not apply to any

of the following types of wastes:

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

operating a household hazardous waste collection program;

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

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

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

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

39-4429, Idaho Code.

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

commercial hazardous waste disposal facility or site permitted under

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

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

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

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

operator per gate ton or fraction thereoffor the characterization, collection,

identification, transportation, treatment, storage and disposal of wastes 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 of S.L. 2004,

ch. 117 declared. an emergency. Approved

March 19, 2004.
IDAHO CODE

CONTAINING THE

GENERAL LAWS OF IDAHO

ANNOTATED

ORIGINALLY PUBLISHED BY AUTHORITY OF

LAWS 1947, CHAPTER 224

REPUBLISHED BY AUTHORITY OF

LAWS 1949, CHAPTER 167 AS AMENDED

Compiled Under the Supervision of the

Idaho Code Commission

R. DANIEL BOWEN

THOMAS A. MILLER RICHARD F. GOODSON

COMMISSIONERS

MAX M. SHEILS, JR.

EXECUTIVE SECRETARY

TITLES 39 (44-83), 40

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iii
TITLE 39

HEALTH AND 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:ESTIC VIOLENCE PRoJECT GRANTS, §§ 3{}"

5201 - 39·5213.

53. ADULT ABUSE, NEGLECT AND EXPLOrrA110N

Acrr, §§ 39·5301 - 39·5312.

54. ARnFIClAL INSEMINATION, §§ 39-5401- 39-

5408.

55. CLEAN INoooR Am, §§ 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. IDAHO RURAL HEALTH CARE ACCESS PROGRAM,

§§ 39·5901 - 39·5913.

60. CNn.DREN'S TRUST FuNo, §§ 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.ools Acrr, §§ 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 of hazardous wastes.

39~4408. Unauthorized treatment, storage,

release, use or disposal of hazardous 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 of entry.

39-4413. Enforcement procedurea.

39-4414. Remedi...

39-4416. Violations constituting misdemeanors. 39-4416. Citizen suits.

39-4417. Hazardous waste emergency account.
39-4401 HEALTH AND 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 of manifested waste.

39-4425. {Reserved.]

39-4426. Appointment of inspectors.

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 inspection by department of environmental

quality,

39-4430. Additions and penalties.

39-4431. Collection and enforcement.

39-4432. Distribution of commercial disposal

fee revenues.

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

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

1983, ch. 154, § 1, p. 416.]

Compiler's notes. The words "this act"

refer to S.L. 1983, ch. 154, § 1 which is

compiled as §§ 39-.4401 through 39-4422.

Sec. to sec. ref. This chapter is 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. Amount and char8

acteristics of wastes as equitable factors in

allocation of response costs pursuant to

§ 113(0(1) of Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C.A. § 9613(1)(1): multiple

waste streams, 162 A.L,R. Fed. 371.

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

of the State ofIdaho finds:

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

and the abatement of air and water pollution have resulted in everincreasing quantities of hazardous waste;

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

ened when hazardous wastes are not managed in an environmentally

sound manner;

(c) That the 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 of great statewide concern.

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

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

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

unsound management of hazardous waste;

(b) To establish a program to track and control hazardous wastes from the

time they are generated through transportation, treatment, storage, and

disposal; and,

(c) Th assure the safe and adequate management of hazardous wastes

within the state. [I.C., § 39-4402, as added by 1983, ch. 154, § 1, p. 416.]
(

3 HAZARDOUS WASTE MANAGEMENT 39-4403

Compiler's notes. For words "this act, to see

Compiler's notes, § 39-4401.

Collateral References. Validity and construction of statutes, ordinances, or regulations controlling discharge of industrial

wastes into sewer systems. 47 A.L,R.3d 1224.

Applicability of zoning regulations 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 of environmental quality.

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

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

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

generators other than the owner and operator of the facility.

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

(4) "Director" means the director ofthe Idaho department ofenvironmental quality or the director's authorized agent.

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

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

that such hazardous waste or any constituent thereof may enter the

environment or be emitted into the air or discharged into any waters,

including ground waters.

(6) "Gate ton" means the weight, in tons (2,000 pounds/ton), of waste

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

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

facility.

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

creation of a hazardous waste.

(8) "Hazardous waste" means a waste or combination ofwastes of a 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

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

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

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

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

or industrial discharges which are point sources subject to national

pollution discharge elimination system permits under the federal water

pollution control act, as amended, 33 U.S.C., section 1251 et seq., or

source, special nuclear, or byproduct material as defined by the atomic

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

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

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

(10) "Hazardous waste facility or site" means any property, structure, or

ancillary equipment intended or used for the transportation, treatment,

storage or disposal of hazardous wastes.
39-4403 HEALTH AND SAFETY 4

(11) "Injection" means the subsurface emplacement of free 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 of generation to the

point of treatment, storage or disposal.

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

generation is required to be manifested for transportation in a manner

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

manifest requirements designed to assure proper treatment, storage and

disposal ofsuch waste.

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

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

polychlorinated biphenyls.

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

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

rights and duties.

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

amended from time to time.

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

wastes ;:egl.ilat~(fas 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 Remedial ActionProgTam (FUSRAP)" sites administered by the

United States army corps of engineers andbeing.pisPQS!ldgfj.,,;;rsuant toa

contract in eXistence on July 1, 2001, and as may beren~wed thereafter.

'_ .. (1S) "Storage" means the containment of hazardous wastes, on a temporary basis or for a period of years, in such a manner as not to constitute

disposal of such hazardous wastes.

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

from a hazardous waste facility or site.

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

to or from a hazardous waste facility or site.

(21) "Treatment" means any method, technique, or process, including

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

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

biological character or composition of any hazardous waste prior to storage

or final disposal so as to neutralize such waste or so as to render such waste

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

amenable for recovery, amenable for storage or reduced in volume. Such

term includes any activity or processing designed to change the physical

form or chemical composition of hazardous waste so as to render it

nonhazardous.

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

material for which no reasonable use or reuse is intended or which is
5 ~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 appear to be

compatible and have been compiled together.

The amendment by ch. 103. § 45, substi·

luted "environmental quality" for "health and

welfare" throughout the section; in subsection

(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 of 1976, referred to in subdivision (IS) of

this section, is compiled as 42 U.S.C. § 6901

et seq.

Section 2 of S.L. 1984, ch. 205 is compiled

as § 39-4410.

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

as § 39-4405.

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

as § :';9-4423.

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

as § 39-4424.

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

as § 39-4427.

Sections 44 and 46 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 of hazardous waste

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

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

in §§ 18-3905 and 39-4423.

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

that the state ofIdaho enact and carry out a hazardous waste program that

will enable the state to assume primacy over hazardous waste control from

the federal government.

The legislature finds that the RCRA, as amended, 42 U.S.C., section 6901

et seq., and federal regulations adopted pursuant thereto, establish complex

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

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

conveniently or advantageously set forth in this chapter all the requirements of all ofthe regulations which have 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 board is directed to promulgate rules which are consistent

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

United States environmental protection agency to implement ReRA. Farmers and ranchers who treat, store, or dispose of waste pesticides from their

operations on lands owned or controlled by them shall not be required by

board rules to do anything more than follow the instructions on the pesticide

label and triple rinse empty containers in accordance with the RCRA

regulations of the environmental protection agency. The board may not

promulgate any rule that would impose conditions or requirements more

stringent or broader in scope than RCRA and the RCRA regulations of the

environmental protection agency. The board may, however, promulgate

procedural rules and rules specifically authorized by this chapter or other

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

regulations of the environmental protection agency; provided that those

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

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

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

through the administrative process of chapter 52, title 67, Idaho Code. [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, § 2 both effective July 1, 1993-

which do not conflict and have been compiled

together.

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

sentence of the second paragraph added "federal" following "6901 et seq., and"; in the 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 of the environmental protection

agency."; and in the present fifth sentence

deleted "or regulation" following "Any rule"

and substituted "chapter 52, title 67, Idaho

Code" fOT "section 67·5201, Idaho Code. et

seq."

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

sentence of the third paragraph deleted "in

substance" preceding "consistent with RCRA"

and deleted a former second sentence.

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

as § 39·4409.

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

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

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

as § 39·4406.

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

emergency. Approved April I, 1986.

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

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

the board shall adopt such rules as are necessary and feasible for the

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

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

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

wastes is hazardous for the purposes of this chapter;

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

hazardous wastes;

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

for containerization, labeling and manifesting of hazardous wastes;

(4) Rules specifying the terms and conditions under which the department shall issue, modify, suspend, revoke, or deny such permits as shall be

required by this chapter;

(5) Lists of those wastes or combinations of wastes which are not

compatible and which may not be stored or disposed of together;

(6) Procedures and requirements for the reporting of the generation,

transportation, treatment, storage or disposal of hazardous wastes;

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

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

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

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

protect human health and the environment;
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

waste facility or site. [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 of 8.L. Sec. to sec. ref. This section is referred to

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

39·4408.

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

as § 39·4403.

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

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

necessary and feasible to enable the department to assume and continue

primacy over hazardous waste management, pursuant to RCRA;

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

this state;

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

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

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

establishment of hazardous waste treatment or disposal facilities or sites;

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

implied from the other sections ofthis chapter. [I.C., § 39·4406, as added by

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

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

ch. 291 is compiled as § 39-4404.

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

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

hazardous or nonhazardous, for the purposes of this chapter.

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

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

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

wastes determined to be hazardous by the United States environmental

protection agency. 'Ib accomplish this goal, the board may adopt by reference

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

characteristics for identif'ying hazardous wastes promulgated by the United

States environmental protection agency pursuant to RCRA. The board shall

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

regulatory amendments promulgated by the United States environmental

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

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

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

notice and opportunity for comment before granting or denying delisting

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

ch. 291, § 4, p. 1082.1

Compiler's notes. SectlOn 5 of S.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 of hazardous waste prohibited. - (1) No person shall treat or

store hazardous waste, nor shall any person discharge, incinerate, release,

spill, place, or dispose any hazardous waste in such a manner that the

waste, or any constituent thereof, may enter the environment, unless the

department has issued said person a permit or a variance as required for the

specific activity involved or exempted the activity from permit requirements.

(2) Effective six (6) months after the effective date [July 1, 1986] of this

provision, nonhazardous liquids shall not be disposed of in a landfill for

which a permit is required under section 39-4409, Idaho Code, or which is

operating pursuant to interim status granted under section 3005(c) of

RCRA, unless the owner or operator of the landfill demonstrates to the

director that:

(a) The only reasonable alternative is placement in a landfill or unlined

surface impoundment which contains or may contain hazardous waste:

and

(b) Placement in the owner or operator's landfill will not present a risk of

contamination of any existing or potential underground source ofdrinking

water.

(3) Waste or used oil or other material which is contaminated or mixed

with any hazardous waste, other than wastes identified solely on the basis

of ignitibility, shall not be used for dust suppression or road treatment.

(4) The board shall have authority to prohibit:

(a) Land disposal of any hazardous waste; and

(b) Storage of any hazardous waste prohibited from land disposal, unless

such storage is solely for the purpose of the accumulation of such

quantities of hazardous waste as are necessary to facilitate proper

recovery. treatment or disposal. [I.C., § 39-4408, as added by 1983, ch.

154, § 1, p. 416: am. 1986, ch. 148, § 3, p. 415.J

Compiler's notes. Section 3005{c) of Section 2 of S.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 permit from the department. The owner or operator ofthe facility

or site rather than the builder shall be responsible for obtaining the permit.

Permits may contain such conditions necessary to protect human health and

environment. The board may exempt classes or categories of hazardous

waste treatment, storage, or disposal facilities from the permit requirement

if the exemption is in the public interest and consistent with RCRA

requirements. The fact that a class or category of such facilities is not

required to obtain a federal permit shall be persuasive evidence that an

exemption is in the public interest.

(2) Interim status granted by RCRA or a permit issued by the United

States environmental protection agency prior to the date that the state
9 HAZARDOUS WASTE MANAGEMENT 39-4409

program is authorized by the administrator of that agency shall be adopted

by the department as a state granted interim status or as a state granted

permit until the department issues a new state permit. The board may

adopt such rules and regulations as necessary to:

(a) Allow other facilities to qualifY for interim status;

(b) Require existing interim status surface impoundments, new units,

replacement of existing units and lateral expansions of existing interim

status facilities to comply with all regulations which apply to new

facilities; and

(c) Provide for the termination of interim status.

(3) The board shall promulgate rules and regulations establishing the

terms and conditions for issuing permits to the described facilities and sites.

The rules and regulations shall provide for, but not be limited to:

(a) Standards and procedures for the safe operation and maintenance of

the facilities and sites;

(b) Education and training qualifications ofpersonnel at the facilities and

sites;

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

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

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

effective management, maintenance, and monitoring of the facilities and

sites during and after operation;

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

off-site;

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

compensate for potential damages caused by the facilities and sites;

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

liability insurance is not required by the federal regulations adopted

pursuant to the RCRA;

(g) Emergency equipment and emergency response 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 be issued for a period not to exceed ten nO) years or the

maximum period allowed under RCRA, whichever is greater. However,

permits may be reviewed at least every five (5) years and modified as

necessary to take into account changes in this chapter or regulations

promulgated pursuant to it and improvements in technology. Permits issued

to hazardous waste facilities and sites by the department prior to the

effective date ofthis chapter shall be reissued to conform with the provisions

of this chapter and the rules and regulations promulgated under this

chapter.

(5) Any permit issued after the effective date of this provision shall

require corrective action to be taken on-site and off-site for all releases of

hazardous waste or constituents, from any solid waste management unit at

the treatment, storage, or disposal facility seeking the permit, regardless of

the time when the waste was placed in such unit. Permits issued from

November 8,1985, until the effective date of this provision shall be reissued

to conform with this provision.
39-4409 HEALTH AND SAFETY 10

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

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

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

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

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

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

the director, application of the requirements would cause unreasonable

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

interest or inconsistent with RCRA requirements. A variance shall not

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

the department provides public notice and an opportunity for public

comment.

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

and demonstration permit for any hazardous waste treatment technology

or process for which permit standards for such experimental activity have

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

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

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

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

as provided below); and

2. Provide for the receipt and treatment by the facility of only those

types and quantities of hazardous waste which the director deems

necessary for purposes of determining the efficiency and performance

capabilities 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

protect human health and the environment (including, but not limited

to, requirements regarding monitoring, operation, insurance or bonding, financial responsibility, closure, and remedial action); and

4. Include such requirements as the director deems necessary regarding testing and providing of information to the director with respect to

the operation of the facility.

(b) The director may apply the criteria set forth in paragraph (a) of this

subsection in establishing the conditions of each permit without separate

establishment of regulations implementing such criteria.

(c) For the purpose of expediting review and issuance of permits under

this subsection, the director may, consistent with the protection 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 of regulations

regarding financial responsibility (including insurance) or of applicable

public participation procedures.

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

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

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

more than three (3) times. Il.e., § 39-4409, as added by 1983, ch. 154, § 1,

p. 416; am. 1986, ch. 148, § 4, p. 415; am. 1987, ch. 102, § 1, p. 204; am.

1988, ch. 7, § 1, p. 7; am. 1988, ch. 259, § 2, p. 498.J
11 HAZARDOUS WASTE MANAGEMENT 39-4410

Compiler's notes. This section was

amended by two 198a acts which appear to be

compatible and have been compiled together.

The amendment by ch. 7, in the first sentence of subsection (5), inserted "issued"; and

added subdivision (8)(d).

The amendment by ch. 259, in subdivision

(2Xb), inserted "'existing interim status surface impoundments"; and in the first sentence

of subsection (S). inserted "issued."

The words enclosed in parentheses so appeared in the law as enacted.

Section 5 of S.L. 1986, ch. 148 is compiled

as § 39·4411.

Sections 1 and 3 of S.L. 1988. ch. 259 are

compiled as §§ 39-4404 and 39-4413, respectively.

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

in §§ 39·4413,39·4426,39·4427.

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

promulgate hazardous waste transportation rules and regulations to control

the intrastate and interstate transportation offederally regulated types and

quantities ofhazardous waste. The rules and regulations shall be consistent

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

transportation and the United States environmental protection agency. The

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

of the Idaho public utilities commission unless such consistency would

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

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

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

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

management program. Rules and regulations so promulgated by the board

shall prevail over conflicting rules and regulations of the commission.

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

to all transporters of federally regulated types and quantities of hazardous

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

regulations shall apply to any movement of a regulated quantity 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 of hazardous wastes;

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

(c) A hazardous waste tracking system requiring that:

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

hazardous waste obtain an identification number from the department,

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

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

accompanied by a manifest or similar form describing the hazardous

waste being shipped and its destination;

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

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

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

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

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

consistent with federal statutory, regulatory and constitutional requirements.

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

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

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

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

transporter has obtained a special permit from the Idaho transportation

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

improperly documented shipment ofhazardous waste arrives at a permitted

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

facility or site shall immediately notifY the Idaho transportation depart- .

ment and the Idaho state police and follow the requirements of its permits

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

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

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

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

Compiler's notes. Sections 1 and 3 afS.L.

1984, ch. 205 are compiled 86 §§ 39·4403 and

39·4417B, respectively.

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

as § 39-4417B.

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

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

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

as § 39·4407.

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

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

Section 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 of this act shall be in full force and

effect on and after this act's passage and

approval. The remaining provisions ofthis act

shall be in full force and effect on and after

January 1, 1987; provided, however, that the

Idaho Transportation Board and Idaho '!ransportation Department shall be authorized to

permit any person renewing or purchasing a

vehicle registration on and after July 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

Enforcement Account 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 act shall be in full force and effect on and

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

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

that the act should become effective on and

after January I, 1989.

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

61·818.

39·4411. Records - Reporting - Monitoring. - (1) Pursuant to

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

amend as necessary, such rules relating to records, reporting, and monitoring as may be needed to achieve the purposes of this chapter. These rules

may include, but shall not be limited to, prescribing procedures and

requirements for:

(a) The establishment, maintenance, and fonnat of records and reports;

(b) The submittal of records and reports;

(c) The taking of samples and the performing of tests and of analyses;

(d) The use of approved monitoring methods and techniques;

Ie) The installation, calibration, use, and maintenance of monitoring

equipment; and
13 HAZARDOUS WASTE MANAGEMENT 39·4411

(

(D The provision of relevant information to the department.

(2) Sixty (60) days after promulgation of the criteria and lists specified

under section 39·4407, Idaho Code, and the rules required under section

39-4405, Idaho Code, and subsection (1) of this section, the generation,

transportation, treatment, storage, or disposal of a hazardous waste in this

state by any person without reporting such activity to the department as

required by the rules issued pursuant to subsection (1) of this section shall

be unlawful.

(3) Information obtained by the department or by agents, contractors, or

other representatives of the department, under any provisions of this

chapter, shall be subject to disclosure according to chapter 3, title 9, Idaho

Code.

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

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

year submit a written annual report to the department including the

following information:

(a) The types and quantities of hazardous wastes generated;

(b) The types and quantities of such wastes shipped for treatment and

disposal by landfilling or other means of disposal;

(c) The types and quantities of such wastes remaining in storage at the

end of the reporting period;

(d) Whether such wastes are destined for disposal or treatment in this

state or whether such wastes are destined for disposal or treatment

outside this state.

(5) Effective January 1, 1996, the operator of each commercial hazardous

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

after the end of each calendar year, submit a written annual report to the

department providing information on the types and quantities of wastes

received which were generated in Idaho, and information on the types and

quantities of wastes received which were generated in other states.

(6) Prior to March 1 of each year the department shall submit a report to

the governor and the legislature detailing the types 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, the types and quantities ofsuch wastes remaining in storage at the

end of the most recent reporting period and the types and quantities of

hazardous waste generated outside this state and shipped into this state for

storage or disposal. [I.C., § 39-4411, as added by 1983, ch. 154, § 1, p. ~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 of S.L. 1993, ch. 291 is compiled

as § 39·4416.

Section 3 of S.L. 1998, ch. 125 is compiled

as § 39-117.

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

emergency. Approved March 19, 1998.

Section 2 of S.L. 1996, ch. 125 declared an

emergency and provided that the act should

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

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

uaT)' 1, 1996, Approved March 8, 1996, in § 39-4429.

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

searches conducted under the authority ofthis chapter shall be performed in

conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendment to the constitution of the United

States and article I, section 17, ofthe constitution ofthe state ofIdaho. The

state shall not, under the authority granted by this chapter, conduct

warrantless administrative searches of private property in the absence of

either consent from the property owner or occupier or exigent circumstances

such as a public health or environmental emergency.

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

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

authorized state employee or representative may, upon presentation of

appropriate credentials, at any reasonable time:

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

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

inspect and to secure samples ofsuch wastes, their containers, and their

labels;

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

means of conveyance where hazardous wastes are or have been contained

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

their labels;

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

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

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

to inspect and copy such documents.

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

operator, the department shall provide the property owner or facility

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

Duplicate samples shall similarly be provided upon request ifthe requesting

party agrees to have the samples analyzed and to share the results of the

analysis with the department.

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

facility owner or operator. The right of entry of a duly 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 of entry of a private contractor

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

made subject to additional confidentiality requirements so long as those

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

contractor to the department or the United States environmental protection

agency.

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

administrative search warrant upon a request from the director describing
15 HAZARDOUS WASTE MANAGEMENT 39-4413

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

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

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

Compiler's notes. Section 45 of S.L. 1990,

ch. 213 is compiled as § 39·5211.

Section 111 of S.L. 1990, ch. 213 as

amended by § 16 of S.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 any person is in violation of any provision ofthis chapter or

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

of the following actions may be taken:

(1) ADMINISTRATIVE ENFORCEMENT ACTIONS.

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

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

identify the alleged violation with specificity, shall specify each provision

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

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

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

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

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

violation by the person to whom it is directed.

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

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

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

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

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

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

civil enforcement action as provided in subsection (3) of 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 of the alleged violation and, where appropriate, to present

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

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

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

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

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

agreed civil penalty.

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

upon signing by both parties and shall preclude any civil enforcement

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

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

appropriate district court specific performance of the consent order and

such other relief as authorized in this chapter.

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

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

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

compliance conference pursuant to subsection (A)( 1)(b) of this section, the

director may commence and prosecute a civil enforcement action in

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

(2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS.

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

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

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

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

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

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

or revocation action by giving a permitted party a written notice ofintent

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

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

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

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

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

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

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

suspend unless the permitted party requests a hearing.

(c) Administrative Hearing Provisions.

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

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

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

provisions of the Idaho administrative procedure act shall apply to all

hearings conducted under thIs subsection.

(iD The director shall have the authority to request from the district

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

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

attendance and testimony of witnesses and the production before the

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

evidence relevant to a permit suspension or revocation investigation or

adjudication.

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

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

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

in a district court as provided by the Idaho administrative procedure

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

record developed before the director.

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

enforcement actions shall be commenced and prosecuted in the district

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

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

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

requirement, consent order, or order which has become effective pursuant
17 HAZARDOUS WASTE MANAGEMENT 39-4414

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

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

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

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

administrative action before the attorney general may commence and

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

may delegate this authority regarding civil enforcement actions to the

prosecuting attorney of the county where a civil enforcement action may

arise.

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

bankruptcy, reorganization or other arrangement pursuant to the federal

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

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

brought directly against a guarantor of financial responsibility by the state

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

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

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

(C) LIMITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL

COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF

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

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

condition, requirement or order issued or promulgated pursuant to this

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

reasonably to have had knowledge of the violation. [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. The federal bankruptcy

code referred to in subsection (B) of this

section is compiled as 11 U.S.C., § 101 et seq.

Section 5 of S.L. 1986, ch. 148 is compiled

as § 39-4411.

Section 2 of S.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, or used for the purpose of complying with the provisions

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

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

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

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

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

violation or for each day of a continuing violation.

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

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

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

penalty is directed to implement a supplemental environmental project.

For purposes ofthis section, "supplemental environmental project" means

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

prevents pollution, reduces the amount of pollutants reaching the environment, contributes to public awareness of environmental matters, or

enhances the quality of the environment. In evaluating a particular

supplemental environmental project proposal, preference may be given to

those projects with an environmental benefit, which relates to the

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

which enhances the quality of the environment in the general geographic

location where the violation occurred.

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

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

assessed for:

(a) The state's costs for any nonroutine investigations, inspections, monitoring, or surveys which lead to evidence of the violation;

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

for preparing and litigating the case;

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

adverse effects upon soil, air, or water quality resulting from the violation;

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

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

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

to restore the resource to its highest previous use;

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 of the case, and all other reasonable

costs of trial preparation and trial of the 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 of the case;

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

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

(3) RESTRAINING ORDERS, INJUNCTIONS AND OTHER RELIEF.

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

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

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

permanent or temporary injunction, restraining order, or other relief

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

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

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

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

injunction or order not be issued or that the remedy at law is inadequate.
19 HAZARDOUS WASTE MANAGEMENT 39-4416

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

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

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

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

(4) PAYMENT TO HAZARDOUS WASTE EMERGENCY ACCOUNT. All

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

of this section to resolve any enforcement proceeding instituted under

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

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

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

1997, ch. 94, § I, p. 219.]

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

ch. 94 is compiled as § 39-108.

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

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

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

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

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

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

violation.

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

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

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

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

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

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

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

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

criminal action. [I.C., § 39-4415, as added by 1983, ch. 154, § 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 on that person's own behalf against any person alleged to have

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

shall be required to file a bond or equivalent security in an amount not less

than one thousand dollars ($1,000) or in conformance with the requirements

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

sought.

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

department has commenced and is diligently prosecuting an administrative,

civil, or criminal action to require compliance with the law. Further, no

action may be commenced under subsection (1) of this section unless the
39-4417 HEALTH AND SAFETY 20

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

evidence of the violation upon which the citizens' action is based. However,

if the department commences an action in a court of the state ofIdaho, any

interested person may intervene as provided in rule 24(a) ofthe Idaho Rules

of Civil Procedure.

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

matter of right.

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

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

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

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

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

state has become a party.

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

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

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

1082.]

Compiler's notes. Sections 6 and 8 of S.L.

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

39-4427. respectively.

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

hereby created an account in the state treasury to be designated the

hazardous waste emergency account.

(2) The account shall consist of moneys appropriated to the account by

the legislature, moneys allotted to the account as a result of departmental

compliance proceedings, moneys allotted to the account in a court ordered

award or 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 of a

hazardous waste emergency to pay the necessary costs of preventing,

neutralizing, or mitigating any threat to the public health or safety, or to the

environment caused by that emergency.

(4) The board may promulgate regulations for the withdrawal and use of

funds from the account as specified in subsection (3) of this section.

(5) All moneys placed in the account are hereby perpetually appropriated

to the department for the purposes described in subsection (3) of this

section. All expenditures from the account shall be paid out in warrants

drawn by the state controller upon presentation of the proper vouchers.

(6) Pending use, surplus moneys in the account shall be invested by the

state treasurer in the same manner as provided under section 67-1210,

Idaho Code. Interest earned on the investments shall be returned to the

account. [I.C., § 39-4417, as added by 1975, ch. 180, § 2, p. 486; am. 1994,

ch. 180, § 74, p. 420.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 on
21 HAZARDOUS WASTE MANAGEMENT 39-4421

November 8, 1994. Since such amendment

was adopted, the amendment to this section

by § 74ofS.L. 1994, ch. 180 became 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. - A permit for a new hazardous

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

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

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

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

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

and the duty to encourage cooperative activities between the department

and other states for the improved management ofhazardous wastes, and so

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

agreements relating to hazardous waste management. The state may enter

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

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

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

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

site shall be dismissed, suspended, or otherwise discriminated against

because the employment testifies, provides information or otherwise assists

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

(2) Any employer who knowingly violates the provisions ofsubsection (1)

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

addition to any other liability for relief authorized by this chapter, by any

other statute, or by the common law. [I.C., § 39-4420, as added by 1983, ch.

154, § 1, p. 416.J

39·4421. Good samaritan protection. - (l) Notwithstanding any

provision oflaw to the contrary, no person who provides assistance or advice

in mitigating or attempting to mitigate the effects ofan actual or threatened

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

cleaning up, or disposing ofor in attempting to prevent, clean up or dispose

of any such leakage, seepage or other release, shall be subject to civil

liabilities or penalties of any type.

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

not apply to any person:

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

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

liable therefor; or
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 of any person for damages resulting from such person's

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

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

39-4422. Severability. - The provisions ofthis act are hereby declared

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

provision to any person or circumstance is declared invalid for any reason,

such declaration shall not affect the validity of remaining portions of this

act. [I.C., § 39-4422, as added by 1983, ch. 154, § 1, p. 416.]

Compiler's Dotes. For words "this act" see

Compiler's notes, § 39-4401.

39-4423. Disposal of restricted hazardous wastes prohibited. -

(1) Notwithstanding any other provision oflaw to the contrary, no person

shall discharge, deposit, inject, dump, spill, leak, or place any restricted

hazardous waste, as defined in section 39-4403, Idaho Code, into or on any

land or water at a commercial hazardous waste facility or site.

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

subsection (1) of this section, if, in the judgment ofthe director, application

of the requirements would cause undue hardship and the granting of the

variance would not be harmful to the public interest or inconsistent with

RCRA requirements. In issuing the variance, the director shall take into

account:

(a) The long-term uncertainties associated with land disposal;

(b) The goal ofmanaging hazardous wastes in an appropriate manner in

the first instance; and

(c) The persistence, toxicity, mobility, and propensity to bioaccumulate of

such hazardous wastes and their hazardous constituents.

(3)(a) The board shall promulgate rules and regulations specifying those

levels or methods of treatment, if any, which substantially diminish the

toxicity ofthe waste or substantially reduce 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) Ifsuch restricted hazardous waste has been treated to the level or by

a method specified in regulations promulgated under this subsection,

such waste or residue thereof shall not be subject to the prohibition in

subsection (1) of this section and may be disposed of in a land disposal

facility which meets the requirements of this chapter. [I.C., § 39-4423, as

added by 1986, ch. 324, § 2, p. 794.J

Compiler's notes. Section 1 of S.L. 1986,

ch. 324 is compiled as § 39-4403.
(

23 HAZARDOUS WASTE MANAGEMENT 39-4427

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

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

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

storage or disposal facility unless the burning ofsuch manifested waste to

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

§ 2, p. 626.]

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

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

39-4425. [Reserved.)

39-4426. Appointment of inspectors. - (1) The department of envi·

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 of assuring the protection of the

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

hazardous wastes which have been transported by common carrier.

(2) All employees of the department designated pursuant to subsection

(1) of this section shall alert proper authorities or peace officers regarding

violations pursuant to this chapter, violations pursuant to title 49, Idaho

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

Code.

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

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

chapter. All actions brought for violations ofthe provisions oftitle 49, Idaho

Code, shall be brought as provided in that title. [I.C., § 39-4426, as added by

1984, ch. 205, § 4,p. 502; am. 1986, ch.231,§ 3,p. 627; am. 1988,ch.265,

§ 569, p. 549; am. 1999, ch. 383, § 1, p. 1051; am. 2001, ch. 103, § 46, p.

253.)

Compiler's DoteS. Section 3 of S.L. 1984,

ch. 205 was repealed.

Section 4 of S.L. 1986, ch. 231 is compiled

as § 49~2201 - 49-2212, and section 2 was

repealed.

Sections 568 and 570 of S.L. 1988. ch. 265

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

Section 2 of S.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 of S.L. 1987. ch. 265 provided

that the act should become effective on and

after January I, 1989.

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

owner or operator of every commercial hazardous waste disposal facility or

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

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

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

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

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

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

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

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

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

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

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

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

contained in paragraph (c) ofthis subsection, ifthe wastes are received by

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

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

same calendar year;

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

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

hazardous wastes; or (ii) are nonhazardous radiologically contaminated

wastes including materials from the "Formerly Utilized Sites Remedial

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

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

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

wastes not otherwise defined in this subsection.

(2) The fees set forth in subsection (1) ofthis section shall not apply to any

of the following types of wastes:

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

operating a household hazardous waste collection program;

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

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

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

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

39-4429, Idaho Code.

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

commercial hazardous waste disposal facility or site permitted under

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

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

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

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

operator per gate ton or fraction thereoffor the characterization, collection,

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

such facility or site. [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 of S.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 amended by S.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

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

fee to be remitted to the department ofhealth

and welfare no later than thirty (30) days

after the end of calendar year 1998, as follows:

"(a) A generator who generates two and

two·tenths (2.2) pounds or more of acutely

hazardous waste as defined by 40 CFR section

261, in any calendar month, or generates

more than two thousand two hundred (2,200)

pounds of hazardous waste at any time in a

calendar month, shall be subject to an annual

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

"(b) A generator who generates between

two hundred twenty (220) and two thousand

two hundred (2,200) pounds of hazardous

waste in one (l) calendar month, shall be

subject to an annual fee ofseven hundred fifty

dollars ($750).

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

this section shall not apply to generators who:

"'(a) Are public or governmental entities;

"'(b) Are dry' cleaners; or

"'(c) Demonstrate, to the satisfaction of the

director ofthe department, an inability to pay

all or a portion of the fee.

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

cleaners" means any generator who owns or

operates a business the primary purpose of

which is to dry clean apparel and fabrics for

the general public, as described in standard

industrial classification no. 7216."

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

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

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

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

of calendar year 1998.

(2) The fee set forth in subsection (1) of this section shall not apply to

facilities which:

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

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

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

1998, ch. 229. § 3, p. 778.J

Compilerts notes. Section 8 of S.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 HEALTH AND 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 under section 39-4427A, 39-4427B or 39-4427C, Idaho

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

(1) of those sections.

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

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

39-4427A, Idaho Code. [I.C., § 39-44270, as added by 1998, ch. 229, § 4, p.

778.]

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

ch. 229 declared an emergency. Approved

March 20, 1998.

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

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

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

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

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

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

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

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

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

the department may require, showing the amount of the fee for which the

owner or operator of the hazardous waste facility or site is liable for the

preceding monthly period, and shall sign and transmit the same to the

department, together with a remittance for such amount in the form

required.

(2) The department may relieve any person or class of persons from the

obligation of filing monthly returns and may require the return to cover

other reporting periods, but in no event shall returns be filed for a period

greater than three (3) months. [I.C., § 39-4428, as added by 1984, ch. 205,

§ 6, p. 502; am. 1998, ch. 229, § 5, p. 778; am. 1999, ch. 290, § 3, p. 716; 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 of S.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 inspection by department of environmental quality. - Every person or entity

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

shall keep complete and accurate records, including itemized invoices and

manifests for federally regulated types and quantities of hazardous waste

ultimately disposed of at a hazardous waste facility or site in Idaho. All

books, documents and papers, computer tapes, discs, and other records

required to be kept by this section shall be preserved for a period of at least

five (5) years from the date ofthe records or the date ofthe entries appearing

in the records, unless the department in writing, authorized their destruction or disposal at an earlier date. For purposes of this chapter, at any time
(

27 HAZARDOUS WASTE MANAGEMENT 39-4431

during usual business hours, the department or duly authorized agents or

employees, may enter any place of business of the owner or operator ofa

hazardous waste facility or site where hazardous wastes are disposed and

inspect the premises, the records required to be kept under this chapter, and

the hazardous wastes or other chemicals contained therein, to determine

whether or not all the applicable provisions 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. If the department, or any of its authorized agents or

employees is unreasonably denied free access or is unreasonably hindered or

interfered with in making the examination ofa hazardous waste facility or

site, that hindrance or interference shall constitute grounds for suspension

or revocation ofthe facility or site's permit by the director ofthe 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. Section7 of S.L. 1998,

ch. 229 is compiled as§ 39-4432.

Section5 of S.L. 1999, ch. 290 is compiled

as

§ 39-4431.

Section 49 of S.L. 2001, ch. 103 is compiled

as§ 39-4431.

SectionB of S.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

water should not be considered to bea "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 they now exist or as they may

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

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

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

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

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

department of environmental quality for the enforcement ofthe commercial

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

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

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

enforcement or collection under this chapter, be described as commercial

disposal fee liens and proceedings.
39-4432 HEALTH AND SAFETY 28

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

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

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

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

judgment secured against the department of environmental quality and

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

[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 of S.L. 1997. ch. 313 is compiled

as § 39·4427.

Section 4 of S.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 of commercial disposal fee revenues. - The

revenues received from the commercial disposal fees imposed by this

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

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

but no less frequently than quarterly as follows:

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

general fund of the state; and

(2) An amount equal to the remaining five percent (5%) shall be remitted

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

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

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

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

county to respond to health and environmental problems which may be

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

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

§ 10,p. 502; am. 1989,ch. 419, § 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 of S.L. 1984.

ch. 205 is compiled as § 67·2917.

Section 6 of S.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 of S.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 of policy.

39-4503. Definitions.

39·4504. Livlog will.

39·4505. Durable power of attorney for

health care.

SECTION.

39-4506. Revocation.

39-4507. Execution of directive.

39-4508. Immunity.

39-4509. General provisions.