# APPENDIX XII

# 2007 

# CUMULATIVE POCKET SUPPLEMENT

IDAHO CODE

Compiled Under the Supervision ofthe Idaho Code Commission

RICHARD F. GOODSON R. DANIEL BOWEN THOMAS A. MILLER COMMISSIONERS

I'vIAX M. SHEILS, JR. EXECUTIVE SECRETARY

TITLES 38, :39(1-43)



# [REPRINT]

Foryourconveniencein reporting any errors in these supplements

or suggested improvements or additions you will find postpaid cards in the back ofthe 2007 Rf'placement Index Volumes.

Place this supplement in the pocket ofthe corresponding volume ofthe set 

# MICHIE

P.O. Box 7587, Charlottesville, VA 22906-7587

tvWW

## .lexisnexis

.com
Customer Service: 1-800-833-9844

### PUBLISHER'S NOTE

Amendments to laws and new laws enacted since the pnblication ofthe bound volume down to and including the 2007 regular session are compiled in this supplement and will be found tmder their appropriate section numbers.

This publication contains annotations taken from decisions ofthe Idaho Supreme Court and the Court of Appeals, and the appropriate federal courts, posted on 

### lexis.com as ofApril 5, 2007. These cases will be printed in the following reports:
Idaho Reports Pacific Reporter, 3rd Series Federal Supplement, 2nd Series Federal Reporter, 3rd Series United States Supreme Court Reports, Lawyers' Edition, 2nd Series

Title and chapter analyses, in these supplements, carry only laws that have been amended or new laws. Old sections that have nothing but annotations are not included in the analyses.

Following is an explanation ofthe abbreviations ofthe Court Rules used throughont the Idaho Code.

I.R.C.P. Idaho Rules ofCivil Procedure I.R.E. Idaho Eules ofEvidence I.C.R Idaho Criminal Rules M.C.R. Misdemeanor Criminal Rules I.I.R. Idaho Infraction Rules LJ.R. Idaho ,Juvenile Rules I.C.A.R. Idaho CourtAdministrative Rules I.A.R. Idaho Appellate Rules
If you have any questions or suggestions concerning the Idaho Code, please write or call toll ft·ee 1-800-833-9844, fa" toll free at 1-800-643-1280,

or en1ail us at customer.support@bender.com.

Visit our wehsite at http://www.lexisnexis.com for an online bookstore, technical support, custon1er service, and other company information.

iii

### TITLE 39

HEALTH AND SAFETY

CHAPrER. 1. ENVIRONMENTAL QUALITY

- HEALTH, §§**39~** 103, 39-104, 39-105, 39-107D, 39-115, 39-116A, 39-118, 39-118A, 39-124, 39- 125,39-130,39-175

- 39-175C. 2. VITAL STATlS')'lCS, §§ 39-241, 39-258, 39- 259,39-260,39-268

- 39-270, 39-277. 3. ALcOHOLISM AND lNToXICATION TREATMENTAm, §§ 39-302

- 39-304. 4. I'UaLiC HEALTH DIsTIucrs, §§ 39-411

- 39- 413. 5. AQUlFERI'ROTECTIONDIsTRIcrs, §§ 39-501- 39-508. 13. HOSPITAL LICENSES AND INSPECTION, ,§§ 39- 1325A

- 39-1325C, 39-1392.

- 39- 1392e, 39-1393, 39-1395, 14. HEALTH FACllJTIES, §§ 39-1443,39-144'IA, 39-1452, 39-1457B

.. 16. FooD ESTABLISHMENTAcr, §§ 39-1602, 39-

. 1606

- 39-1608. 20. BA1lBER· SHOPS, HAmnRESSING**ESTABUSH~** MBNTS AND PtmLIC BATHING PLACES. [RE*'
PEALED.] 21. MAmmla OF EXPLOSIVE8, § 39-2102A. 28. AsATRldENT DISTRIcrs, §§ 39-2801

- 39- 2802,39-2804, 39-2806, 39-2809

- 39· 2814. CHAP"'" 30. RADIATION AND NuCLEAR MATERIAL, §§**39~** 3001

- 39-3019, 39-3026, 39-3028.**~1.** REGIONAL MENTAL HEALTH-SERVICES, §§ 39- 3124

- 39-3133, 39-3134A. 32. IDAHO COMMUN1T'l HEALTH CENTER GRANT I'RooRAM, §§ 39-3201 39-3209

.. 33. IDAHO RESIDENTIAL CARE OR AssISTED LMNG Am:, §§ 39-3301

- 39-3310, 39-3313, 39-3315, 39-3316, 39-3318

- 39-3322, 39-3324

- 39-3333, 39-3340

- 39- 3355, 39-3359, 39-3370

- 39-3389, 39· 3392, 39-3393.
34. REVIsED UNIFORM ANATOMICAL GIFT Am, §§ 39-3401, 39-3402

- 39-3425. 35. IDAHO CERTIFIRD FAMILY HOMES, §§ 39- 3501

- 39-3540, 39-3554A

- 39-3580. 36. WATER QuALITY, §§ 39-3602, 39-3611

- 39-3813, 39-3615, 39-3616, 39-3626. 39. STERILIZATION, §§ 39-3901

- 39-3916. 40. MANuFACTURED HOMES

- . STANDARDs, §§ 39-4001

- 39-4004, 39-4006, 39- 4008, 39-4009. 41. IDAHO BUILDING COO! Am:, §§ 39-4103.- 39-4106, 39-4107, 39-4109, 39-4116, 39-4121, 39-4128. 43. MODULAR BUILIlINGS, §§ 39-4301 ..;. 39- 4306,

CHAPTER 1

.ENVIRONMENTAL QUALITY

- HEALTH

, .**~/** SECTION. 39-103. DefinitiqnB.**39~104.** Department of environmental**qual~** lity

- Creation.**39~105.** Powers and duties ofthe director. 39-107D. Rules ofdepartment or board.**39~** 115. Pollution source permits.**39~1l6A.** Compliance agreement.schedules. 39-118. Review ofplene. 39-USA. Ore processing by cyanidation. 39-124. Legiel.tive findinge

- Intent. [Effective until April 7, 2008.] 39;.125. Moratorium on construction of**cer~** SECTION. tain coal fired powerplants

- Report. [Effective until April 7,2008.J**39~** 130. Removal

- Remediation

- Bunker Hill mining aM metallurgical complex superfund facility. 39-176. [ReBerved.!

. 39-175A. Legislative findings and purposes, 39-175B. Relationship between .tate and federal law, 39-176C. Approval of.tate NPPES program,



### 39·103. Definitions.

- 

### Whenever used or referred to in this chl;lpter, unless 1;1 

### different meaning cle!U'ly appears from the context, the following terms shall have the following meanings:

(1) "Air 

### contaminant" or "air contamination" means the presence in the outdooratmosphere ofanydust, fume, mist, smoke, radionuclide, vapor, gas
orothergaseous fluid orparticulate substancedifferingincompositionfrom

or exceeding in concentration the natural components ofthe atmosphere.



### 1339-103 HEALTH AND SAFETY 

### 14

(2) "Air pollution" means the presence in the outdoor atmosphere ofany contaminant or combination thereofin such quantity ofsuch nature and duration and under such conditions as would be injurious to human health

or welfare, to animal or plant life, or to property, or to interfere unreasonably with the enjoyment oflife or property.

(3) "Board" means the board ofenvironmental quality. (4) "Cyanidation" means the method ofextracting targetprecious metals from ores by treatmentwith cyanide solution, whichis the primaryleaching agent for extraction.

(5) "Cyanidation facility" means that portion of a new ore processing facility, or a material modification or a material expansion ofthatportion of

an existing ore processing facility that utilizes cyanidation and is intended
to contain, treat, or dispose ofcyanide containing materials including spent ore, tailings, and process water. (6) "Department" means the department ofenvironmental quality. (7) "Director" means the director of the department of environmental quality or the director's designee. (8) "Emission" means any controlled oruncontrolled release or discharge into the outdoor atmosphere ofany aircontaminantorcombinationthereof. Emission alsoincludes anyrelease ordischarge ofany aircontaminantfrom

a stack, vent or other means into the outdoor atmosphere that originates from an emission unit. (9) "Laboratory" means not only facilities for biological, serological, biophysical, cytological and pathological tests, but also facilities for the chemical or other examination ofmaterials from water orother substances. (10) "Medical waste combustor" means any device, incinerator, furnace, boiler or burner, and any and all appurtenances thereto, which burns or pyrolyzes medical waste consisting of human or animal tissues, medical cultures, human blood or blood products, materials contaminated with human blood or tissues, used or unused surgical wastes, used or unused sharps, including hypodermic needles, suture needles, syringes and scalpel blades. (11) "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. (12) "Public watersupply" means all mains, pipes and structures through which water is obtained and distributed to the public, including wells and well structures, intakes and cribs, pumping stations, treatment plants, reservoirs, storage tanks and appurtenances, collectively or severally, actuallyused orintendedforuseforthe purpose offurnishingwaterfor drinking

or general domestic use in incorporated municipalities; or unincorporated communities where ten (10) or more separate premises or households are being served or intended to be served; or any other supply which serves water to the public and which the department declares to have potential health significance. (13) "Solid waste" means garbage, refuse, radionuclides and other discarded solid materials, including solid waste materials resulting from

### 15 ENVIRONMENTAL QUALITY

- HEALTH 

### 39-104

industrial, commercial and agricultural operations and from community activities but does not include solid or dissolved materials in domestic sewage or other significant pollutants in water resources, such as silt, dissolvedor suspended solids in industrial wastewater effluents, dissolved materials in irrigation return flows or other common water pollutants. (14) "Solid waste .disposal" means the collection, storage, treatment, utilization,processing or final disposal ofsolidwaste. (15) "State" means the state ofIdaho. (16) "Substantive" means that·which creates, defines or regulates the rights ofany person or implements, interprets or prescribes la'?\' or policy, but does not include.statements concerning onlythe internal management ofthe departmentandnotaffectingprivaterights orprocedures availableto the public. (17) "Water pollution" is such alteration ofthe physical, thermal, chemical, biological or radioactive properties ofany waters ofthe state, or such discharge ofany contaminantinto the waters ofthe state as will oris likely to create. a nuisance or render such waters harmf)1l or detrimental or injurious to public health, safety or welfare or to domestic, commercial, industrial, recreational, estheticorotherlegitimateusesortolivestock, wild animals, birds, fish or other'aquatic life.

(18) "Waters" means all accumulations of water; surface. and·underground, natural and artificial, public andprivate orparts thereofwhich are whollyorpartiallyWithin, flow through orborderupon.this state exceptfor private waters as defined in section 42-212, Idaho Code. [I.C., § 

### 39-103 as. addedby S.L. 1992, ch. 305, § 

### 4, p. 911; am. 1993, ch.267, § 

### 1, p. 899; am. 2000, ch. 132, 

### § 5, p. 309; am. 2005, ch. 167, § 

### 1, p. 509.]

Compiler's Notes. Section 2 ofS.L. 2005, ch. 167 i. compiled

## a. § 39-118A.



### 39·104. Department of environmental quality Creation. 

### (1) Thereis createdandestablishedinthe stategovernmenta department ofenvironmental quality which shall for the purposes ofsection20, article IV, ofthe constitutionofthe stateofIdahobe aneXE\cutivedepartmentofthe state government. The executive and administrative power ofthis department shall be vested in the director of the department who shall be appointed and serve at the pleasure ofthe governor, with the advice and consent ofthe senate. (2) The departmentshallbe organizedinsuchadministrativedivisions or regions as. may be necessary in order to efficiently administer the department. Each division shall be headed by an administrator who shall be appointed by and serve at the pleasure ofthe director.

(3) The INL coordinator, deputy director, regional administrators and division administrators shall be nonclassified employees exempt'·from the provisions ofchapter 53, title 67, Idaho Code. (4) No provision of this title shall be interpreted as to supersede, abrogate, injure orcreate rights to divert orstorewater and applywater to beneficialuses establishedunder section 3, articleXV ofthe constitution of the state ofIdaho and title 42, Idaho Code: Nothing in this title shall be

### 39-105 HEALTHAND SAFETY 

### 16

construed to allow the department to establish a water rightfor minimum stream flows or a water right for minimum water levels in any lakes, reservoirs or impoundments. Minimum stream flows and minimum water levelsmay onlybe establishedpursuant to chapter 15, title 42, IdahoCode. (5) Nothing in this title shall be construed to allow the department to establishorrequire minimum streamflows whichwouldpreventanywater from being diverted for irrigation purposes pursuant to existing water rights, or to establish or require minimum water levels in any lakes, reservoirs or impoundments in which any water is stored for irrigation purposes,which would adversely affect existing water rights or contracts withthe federal government. [1973, ch. 87, § 

### 3, p. 137; I.C., § 

### 39-104b, as
am. andredesig. to § 

### 39-104by 1974, ch. 23, §·48,p. 633; am. 1995, ch. 365, § 

### 1, p. 1276; am. 2000, ch. 132, § 

### 6, p. 309; am. 2007, ch. 83, § 

### 1, p. 221,]

Compiler's N:otes. The 2007 amendment, coordinator" for "INEEL coordinator-manby ch. 83, in subsection (3), substituted "INL ager" and inserted ldeputy director."



### 39.101i. Powers

### anddutiesof**~he** 

### director.

- Thedirectorshallhave the following powers and duties: (1) 

### All ofthe rights,**pow~rs** 

### and duties regarfling environmental protection functions vested in the department ofhealth and welfare, and its director, administered by the division ofenvironmental quality, including, butnotlimitedto, thoseprovidedby chapters 1, 4, 30, 36, 44, 58, 62, 64, 65, 66, 70, 71, 72 and 74, title 39, Idaho Code. The director shall have all such powerS and duties as described in this section as may have been or could havebeenexercisedbyhis predecessors inlaw, and shallbethe successorin 

### law to all contractllal obligations entered into by predecessors in law. All hearings ofthe director shall be governed by the provisions ofchapter 52, title 67, Idaho Code.
,. (2) The directorshall, pursuantandsubjectto the provisions ofthe Idaho Code, andthe provisions ofthis act, formulate andrecommendto theboard, rules as maybe necessary to dealWithproblems relatedto waterpollution, air pollution,solid waste disposal, and licensure and certification requirements pertinentthereto,.which shall, upon adoptionbytheboard, have the force ofthelaw relatingto anypurposewhichmaybenecessaryandfeasible for enforcing the provisions ofthis act, including, but not limited to, the prevention, control or abatementofenvironmentalpollution ordegradation including radionuclides and risks to public health related to anY 

### ofthe powers and duties describedinthis section. Any suchrule maybe ofgeneral application throughout the. state or may be limited as to times, places, circumstances or conditions 

### in order to make due allowance for variations therein. (3) The director, under the rules adopted by the board, shall have the general supervision ofthe promotion and protection ofthe environment of this state. The powers and duties ofthe director shall include, but not be limited to, the following: (a) The issuance oflicenaes andpermits as prescribedby ll!w,andby the rules oftheboard promulgatedhereunder. Foreach air 

### quality operating permitissuedundertitle Vofthe federal clean air

### act andits implement-

### 17 ENVIRONMENTAL QUALITY-'- HEALTH 

### 39-105

ingregulations, thedirectorshall, consistentwiththe federal cleanairact and its implementing regulations, expressly include a provision stating that compliance with the conditions of the permit shall be deemed compliance with the applicable requirements ofthe federal clean air act and the title V implementing regulations. The director may develop and issue general permits covering numerous similar sources, as authorized by 40 CFR 70.6(d) as may be amended, and as appropriate. (b) 

### The enforcement of rules relating to'public water supplies and to administerthe drinkingwaterloanfund pursuantto chapter76, title 39, Idaho Code, including making loans to eligible public drinking water systems as definedinthefederal safe drinkingwateract as amended, and
to comply with all requirements ofthe act, 42 U.S.C. 300f, et seq. and regulations promulgated pursuant to'the 

### act

..This includes, but is not limited to, the developmentofand implementation ofa capacity developmentstrategyto ensurepublic drinkingwatersystemshavethetechnical, managerial and financial capability to comply with the national primary drinking water regulations; andthe enhancement ofprotection ofsource waters.forpublic drinking water systems. (c) .The establishment ofliaison with other governmental departments, agencies. and boards in order to effectively assist, other governmental entities with:the planningfor the control oforabatement ofenvironmental pollution. All ofthe rules adopted by the board hereunder shall apply to state institutions. ' r 

### (d) The supervision and administration of a system. to safeguard air quality andforlimiting and controllingthe emission ofair contaminants. (e) The supervision and administration of'a system to ,safeguard the quality of the waters of'this state including, but not limited to, the enforcement ofrules relating to the discharge ofeffluent into the waters of this state and the storage, handling and transportation of solids, liquids, and gases which may cause or contribute to water pollution. For purposes ofcomplyingwiththe cleanwater act, the directormay provide

an exemption from additional reductions for those nonpoint sources that
meetthe applicablereductions setforth

## In an approved'rMDL as defined

, in chapter 36, title 39, Idaho Code.

(1) 

### The supervision and administration of administrative units whose responsibility shall be to assist and encourage counties, cities, other govenunental units, and industries in the control ofand/or abatement of environmental pollution. ' (g) The adtninistrationofsolid waste disposal site and designreview in accordance with the provisions ofchapter 74, title 39, Idaho Code, and chapter 4, title 39, Idaho Code, and in particular as follows: ' (i) The issuance ofa solidwaste disposal site certificate in the manner provided in chapter 74, title 39, Idaho Code. (til Provide review and approval regarding the desigu ofsolid waste disposal facilities and ground water monitoring systems and approval ofall applications for flexible standards as provided in 40 CFR258, in accordance with the provisions ofchapter 74, title 39, Idaho Code.39-105 HEALTHAND SAFETY 

### 18

(iii) Cooperating and coordinating with operational monitoring ofsolid
waste disposal sites by districthealth departments pursuantto authority established in chapters 4 and '74, title 39, Idaho Code. (iv) The authoritygrantedto the directorpursuantto provisions ofthis subsection shall be effective upon enactment of chapter 74, title 39, Idaho Code, by the legislature. (v) The authority to develop and propose rules as necessary to supplement details of compliance with the solid waste facilities act and applicable federal regulations, provided that suchregulations shall not conflict with the provisions of this act nor shall such regulations be

more strict than the requirements established in federal law or in the solid waste facilities act. (h) The establishment, administration and operation of: (i) Anetworkofenvironmental monitoring stations, independentofthe United States departmentofenergy, within and around the facilities of the Idaho national laboratory to provide authoritative auditing and analysis of emissions, discharges or releases of pollutants to the environment, including the air, water and soil from such facilities; and (ii) Programs within the department to utilize the data obtained from such monitoring, and any other relevant data, in the enforcement of applicable agreements, statutes and rules pertaining to such facilities and programs to review, analyze and participate in remedial decisions and other proposed actions and projects to ensure the protection of public health and the environment. The director shall also monitor the implementation of agreements between the United States and the state ofIdaho related to the operation and environmentalprotection obligations ofthe Idaho nationallaboratory and provide periodic information to the governor, the attorney general, the legislature and the people ofIdaho concerning compliance with such agreements and obligations. The director shall have the power to enter into agreements with the United States department ofenergy in order to carry out the duties and authorities provided in this subsection. (i) The enforcement ofall laws, rules, regulations, codes and standards relating to environmental protection and health. (j) The enhancement and protection ofsource waters ofthe state pursuant to rules ofthe board. (4) The director, when so designated by the governor, shall have the powerto applyfor, receive onbehalfofthe state, and utilize any federal aid, grants, gifts, gratuities, or moneys made available through the federal governmentincluding, butnotlimitedto, the federal waterpollutioncontrol act, for use in orby the state ofIdaho inrelation to health and environmental protection. (5) The director shall have the power to enter into and make contracts and agreements with any public agencies or municipal corporation for facilities, land, and equipment when such use will have a beneficial or recreational effect or be in the best interest in carrying out the duties imposed upon the department. The director shall also have the power to enter into contracts for the expenditure ofstate matching funds for local purposes. This subsection will

### 19 ENVIRONMENTAL QUALITY

- HEALTH 

### 39·107D

constitute the authority for public agencies or municipal corporations to enterinto such contracts and expend money for the purposes delineated in such contracts.

(6) The director is authorized to adopt ,an official seal to be used on appropriateoccasions, in connectionwiththefunctions ofthe departmentor the board, and such seal shall be judicially noticed. Copies ofany books, records, papers andotherdocuments inthe departmentshallbe admittedin evidence equallywith the originals thereofwhen authenticatedunder such seal. [1972, ch. 347, § 5, p. 1017; am. 1974, ch. 23, § 49, p. 633; am. 1980, ch. 325, § 1,p. 820; am. 1988, ch. 47, § 2,p. 54; am. 1989, ch. 308, § 3;p. 762;atn. 1991,ch. 332, § 2,p. 859; am. 1992, ch. 307, § l,p.915;am. 1992, ch. 331, § 2,p.972;am. 1993,ch. 139,§ 22,p. 342; am. 1993, ch. 275, § 4, p.926;am. 1994,ch. 75,§ l,p. 156; am. 1997,ch.26,§ l,p. 36; am. 1999, ch. 174, § 1, p. 467; am. 2000, 00. 132, § 8,p. 309; am. 2004, ch. 335, § 2, p. 995; am. 2007, ch. 83, § 2, p. 221.]

Compiler'sNotes."Sections 1 and 3 ofS.L. 2004, eh. 335 are compiled as chapter:24, title 54 and § 67-2601, respectively.

Section 4 ofS.L. 2004. ch. 335 declared an emergency. Approved March 24, 2004.

The 2007**amendmen~** by ch. 83,. added**sub,8e~Y9p.1'** .**(~)(h)** '

.. and made related redesignahons.· ' Cross Reference. Drinking water

-and

. wastewater professionals, licensing of, § 54-

2401 et seq.

Idaho solid waste facilities act, § 39-7401 et seq.



### 39·107D. Rules of department or board.

- (1) The legislatUre directs thatanyruleformulated andrecommendedbythe departmenttothe board which is broader in scope or more stringent than federal law or regulations, orproposes to regulate an activitynotregulatedbythe federal government, is subject to the following additionalrequirements: the notice ofproposedrulemaking andrulemakirigrecordrequirements underchapter 52, title 67, Idaho Code, must clearly specify thatthe proposed rule, or portions ofthe proposed rule, are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government, and delineate which portions ofthe proposed rule are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government. (2) To the degree that a department action is 'based on science, in proposing any rule or portions of any rule subject to this section, the department shall utilize:

(a) The best available peer reviewed science and supporting studies conductedin accordancewith sound and objective seientificpractices; and (b) Data collected by accepted methods or best available 'methods if'the reliability ofthe method and the nature ofthe decisionjustify use ofthe data.

. (3) Any proposed rule subject to this section which proposes a standard necessary to protect human health and the environment shall also include in the rulemaking record requirements under chapter 52, title 67, Idaho Code, the following additional information:

(a) Identificationofeachpopulationorreceptor addressedby anestimate ofpublic health'effects or environmental effects; and39-115 HEALTH AND SAFETY 20

(b) Identification ofthe expected risk or central estimate ofrisk for the specific population or receptor; and (c) Identification ofeach appropriate upper bound or lower bound estimate ofrisk; and (d) Identification ofeach significant uncertainty identified in the process ofthe assessmentofpublichealth effects orenvironmental effects and any studies that would assist in resolving the uncertainty; and (e) Identification ofstudies known to the department that support, are directlyrelevantto, orfail to support any estimate ofpublichealth effects

or environmental effects and the methodology used to reconcile inconsistencies in the data. (4) The department shall also include a summary of the information required by subsection (3) of this section in the notice of rulemaking required by chapter 52, title 67, Idaho Code. (5) Any rule promulgated or adopted by the board which is broader in scope ormore stringent than federal law or regulations, orwhich regulates

an activity not regulated by the federal government, submitted to the standing committee of the legislature pursuant to section 67-5291, Idaho Code, shall include a notice by the board identifYing the portions of the adoptedrulethatarebroaderin scope ormore stringentthan federal law or rules, orwhichregulate anactivitynotregulatedbythefederal government. (6) Nothing provided herein is intended to alter the scope or effect of sections 39-105(3)(g)(v), 39-118B, 39-3601, 39-4404, 39-7210 and 39-7404, Idaho Code, or any other provision ofstate law which limits or prohibits agency action orrulemakingthatis broaderin scope ormore stringentthan federal law orregulations. [I.C., § 39-107D, as added by 2002, ch. 144, § 1, p. 405; am. 2003, ch. 259, § 1, p. 682; am. 2007, ch. 83, § 3, p. 221.]

Compiler's Notes. The 2007 amendment, by ch. 83, deleted "39-6205" following**"39~** 4404" in subsection (6),

39·115. Pollution source permits.

- (l)(a) The director shall have the authority to issue pollution source permits in compliance with rules established hereunder. (b) To determine the applicabilityofpermitrequirements for anymajoror minor air pollution source in Idaho, the department shall develop and recommend to the board for adoption, rules that define "regulated air pollutant" as follows: (i) Forpurposes ofa major source permitto operateissued or modified bythe departmentin accordance withtitleV ofthe federal clean air act amendments of 1990, "regulated air pollutant" shall have the same meaning as in title V ofthe federal clean air act amendments of 1990, and any applicable federal regulations promulgated pursuantto title V ofthe federal clean air act amendments of 1990; (ii) For purposes ofany other operating permit issued or modified by the department, the federal definition of**~regulated** air pollutant" as defined in subsection (l)(b)(i) ofthis section shall also apply;

### 21 ENVIRONMENTAL QUALITY

- HEALTH

.39-115



### . (iii) Forpurposes ofany permit taconstructissued or modified bythe

department pursuantto part D ofsubchapter I ofthefederal clean'air 

### act, "regulated air pollutaht" shall mean those air 

### contaminants that

areregulatedpursuantto partD ofsubchapterI ofthe federal clean air act and applicable federal regulations promulgated pursuant to part D ofsubchapter I ofthe federal clean air 

### act; and

.., (iv) For purposes ofmajor soutce compliance with 42 U.S.Go section 7412(g) and (i)(l), "regulated air pollutant" shall mean' tho5'e 'air contaminantsthatare listedpursuantto 42 U.S.C. section74'l2(b); and .(v):ForpurposesofanyothermajororminorpermittoconstrUctissued

or modified by the department, "regulated air pollutant"' shall.mean

. those air'contaminants that are regulated pursuant to part· C of

. . subchapter'I ofthe federal clean air a:ct and any, applicable federal regulations promulgated pursuant to part C of**subchap~er"I** 

### 'ofthe federal clean air act. ,,; : " (c)· 

### To determinethe applicability ofanypermit to construct orpermit to operate requirement to any air 

### pollution source in Idaho; fugitive :emissians'sliallnot be included in any applicability calculation, unless're-

.quired.by 42 U.S.C: section 7401 et seq. or any implementingoregulation promulgated therel11lder. The director shall develop and the,board.shall

.adopt. rul,es that prov;ide that,Jor both.msjor.and· 'minor,source.permit applica,bility;determinations,'fugitive emissions shall,beinCluded only as requiredby42U.S.C. section7401 etseq. oranyimplementingregulation promulgated thereunder. (d) The director shall develop and recommend to the board for adoption through rulemaking, criteria to determine insiguificant activities and such sources or modification with emissions 'at 

### iJibelow the de minimis level which shall not require either a permit to construct or a permit to operate; providedhowever, that a registratipn ofthe**activitie~()rsources** 

### may be required.

.. .. . (2) The director shall have the authority to sue in competent courts to enjoin any threatened or continuing: .: .,../.' '

(a) Violations ofpollution. source permits ot conditions thereofwithout the necessity of a priorrevocation ofthe pennit; or

.". (b); 

### Construction ,of 

### an industrial or commercial'air pollution source withouta permitrequired**~der** 

### this chapteror.rules adoptedhereunder. (3),.Thedepartmentis authorizedtocharge andcollectafeeforprocessing applications for industrial or commercial air pollution source pernlits in accordance.with a fee· sphedu1e. establishedby the board' pursuaJit to this

, Chapter. For'fees charged for operatingpermits under title Vofthe federal

clean airactamendments of1990, the department shallnotCharge·afee on anyhazardous airpollutantotherthanthose listedl11ldersection112 ofthe federal clean air 

### act. The fee ,schedule shall be,

### structut~, to provide an incentive for emission reduction.

. ' (4)

.The

..director may issue air emission source permits 

### to construct a faCilibyI' to,>.'

### inainerate 'any; VIIaste":or. waste. item;contaminated. with polychlorinated biphenyls (PCBs) only ifthe director finds:39-116A HEALTH AND SAFETY 22

(a) Thefacilitywillnotbe sitedincomplexvalleyterrainwhere thevalley floor is less than five (5) miles wide and the valley walls rise more than

one thousand (1,000) feet; (b) The facility has complied with local planning and zoning requirements; (c) There has been an opportunity for public participation; and (d) The facility will employ best available technology and instrumentation. Subsection (4) of this section shall not apply to incineration activities existing on orbeforeJanuary 1, 1987. [I.C., § 39-115, as addedby 1973, ch. 138,§ 1, p. 269; am. 1974,ch.23,§ 56,p. 633; am. 1987,ch. 135,§ 1,p.269;

am. 1987,ch. 198,§ 2,p. 411; am. 1993, ch. 275, § 6,p. 926; am. 2000, ch. 132, § 23, p. 309; am. 2005, ch.292, § 2,p. 929; am. 2005, ch. 324, § 1,p. 994.]

Legislative Intent. Section 1 ofS.L. 2005, ch. 292 provided "STATEMENT OF LEGISLATNE INTENT. The definition of'regulated air pollutant' for purposes of determining whether permit to construct or permit to operate requirements apply, was intended to comply with but not exceed federal clean air act requirements. The Legislature intends that the Department ofEnvironmental Quality uniformly apply Idaho law in an effort to conform with but not differ from federal definitions ofregulated air pollutants.**Neverthe~** less, the United States District Court for Idaho has applied portions of rules of the Department ofEnvironmental Qualityfor air pollution in a manner which substantially exceeds federal requirements. This act is meant to clarifythat Idaho law in this regard has always been intended to comply with but not exceed federal law and should not be construed as a change in the law, butrathera clarification of what the existing law has consistently meant."

Compiler's Notes. Section 1 ofS.L. 2005, ch. 324 amended this section as itread following its amendment by S.L. 2005, ch. 292 (House Bill 230), § 2.

39-116A. Compliance agreement schedules. -(1) The director is hereby authorized to enter into a compliance agreement schedule with any person. An agreement entered into under this section shall not relieve any person from the obligation to comply with applicable human health and environmental protection statutes and rules, but may include an enforceable schedule for actions necessary for the person to come into or maintain compliance as expeditiously as practicable with such statutes and rules, if the person demonstrates to the satisfaction ofthe department that such a schedule is appropriate, given the factors listed in subsection (4) of this section. The provisions ofthis section shall not apply where prohibited by federal or state law. (2) The department may propose, and the board adopt, rules necessary for the implementation ofthis section. (3) In establishing any compliance agreement schedule, the term ofthe agreement shall not exceed ten (10) years, although successive agreements maybeenteredinto. Agreements shallprovide for annualmeetings between the department and the person to reassess whether, considering the factors listed in subsection (4) ofthis section, the schedule and other terms ofthe agreement are still appropriate. All agreements must be signed by the director or his designee and an authorized representative on behalfofthe person.Allagreements are enforceable as orders undertheprovisions ofthis chapter.

### 23 ENVIRONMENTAL QUALITY

- HEALTH 

### 39-118

(4) Agreements and schedules enteredinto underthis act shalltake into account, in descending priority the:

(a) Protection ofpublic health; (b) Protection'ofenvironment;

. (c) Ability ofthe person to payfor coste ofcompliance; (d) Current tiscal obligations ofthe person; (e) Other factors as determined by the department or the board. [I.C., § 

### 39-116A, as added by 2003, ch. 317, § 

### 1, p. 869.]

Compiler's Notes. Section 2 ofS.L. 2003; ch. 317 declared an emergency. Approved April 24, 2003.

. .

39-118. 

### ReviewofplanIi.

- 

### (1) Exceptas providedbysubsection(2) of this section, all plans and specifications for the construction ofnew sewage systems, sewage. treatment plants or systems, other waste treatment or disposal facilities, public water supply systems or public'water treatment systems or for material modification or expansion to existing sewage treatment,plants or systems, waste treatment or disposal facilities, pUQlic' water.supplysystems orpublicwatertreatmentsystems, shallbeSUblllitted to and approved by the director before construction may begin, and all construction shallbein substantial compliance therewith. Material !ttodifications are those that are intended to increase system capacity 01," 

### to alter the methods or processes employed. The director shall I,"evie'w plans and specifications and endeavor to resolve design issues within forty;two (42) days ofsubmittal such that approval can be granted. Ifthe director and applicant have not resolved design issues within forty-two (42) days or at anytime thereafter, the applicantmayfile a writtendemandtothe dil,"ector for a decision'. Upon receipt of such written demand, the director shall deliver a written decision to the applicant within no more than seven (7) days explaining 

## rolY' reasons for disapproval. The director shall maintain records ofallwrittendemands for.decisionmadepursuanttothis subsection

. with such records including the final decision rendel,"ed and the timeliness thereof. No material deviation shall be made from the approved plans and specifications without the prior approval ofthe director.

.

(2) Plans meeting the following standards shall not require preconstruction approval by the director: (a) Plans for dalry systems pursuant

### to section 37-401, Idaho. Code. (b) Plans developed to evidence compliance with storm water bestmanagement practices. (c) Plans developed for routine maintenance 01" 

### equipment replacement activities. (d) Plans for sanitary sewer extensions, water main extensions, and storm drain extensions, when such facilities will be owned and operated' by a city, county, quasi.municipal cOJ,"Poration 01," 

### regulated public utility where such city, county, quasi-municipal cOJ,"Poration 01," 

### regulated public utility provides for the I,"eview of such plans and specifications by a qualifiedlicensed professional'engineer

### to verifycompHance with·facility standards and approves constructionplans priorto initiationofconstruc-39-118 HEALTH AND SAFETY 24

tion. Anyplans approved pursuantto this subsection shallbe transmitted
to the director at the time construction is authorized along with a statement that the plans comply with the facility standards and that constructionhas been authorizedby the public agency orpublic utility. At thediscretion ofanycity, county, quasi-municipalcorporation orregulated public utility, the plans addressed by this subsection may be referred to the director for review and approval prior to initiation ofconstruction. (3) Within thirty (30) days ofthe completion ofconstruction offacilities for which plans are required to be reviewed pursuant to subsection (1) or subsection (2)(d) of this section, record plans and specifications based on information provided by the construction contractor and field observations made by the engineer or the engineer's designee depicting the actual construction offacilities performedmustbe submitted to the directorby the engineer representing the public agency or regulated public utility, ifthe resultant facilities will be owned and operated by a public agency or regulated public utility, or by the design engineer or owner-designated substitute engineer if the constructed facilities will not be owned and operated by a public agency or regulated public utility. Such submittal by the professional engineer must confirm material compliance with the approved plans or disclose any material deviations therefrom. Ifconstruction does not materially deviate from the original plans and specifications previously provided to the department, the owner may have a statement to that effect prepared by a licensed professional engineer and filed with the department in lieu of submitting a complete and accurate set of record drawings. (4) All plans and specifications submitted to satisfy the requirements of subsection (1) ofthis section and all plans approved pursuantto subsection (2)(d) of this section shall be in compliance with applicable facility and design standards and conform in style and quality to regularly accepted engineering standards. The department shall review plans to determine compliance with applicable facility standards and engineering standards of

care. As long as the plans and specifications comply with applicable facility and design standards, the department shall not substitute itsjudgment for that ofthe owner's design engineer concerning the manner ofcompliance with design standards. Except with respect to plans and specifications for facilities addressed in subsection (5) ofthis section, and confined animal feeding operations, the board may require that certain types ofplans and specifications must be stamped by registered professional engineers. Ifthe director determines that any particular facility or category offacilities will produce no significant impact on the environment or on the public health, the director shall be authorized to waive the submittal or approval requirement for that facility or category offacilities.

(5) All plans and specifications for the construction, modification, expansion, or alteration ofwaste treatment or disposal facilities for aquaculture facilities licensedby the department ofagriculture for both commercial fish propagation facilities as defined in section 22-4601, Idaho Code, and sport fish propagation facilities whether private or operated or licensed by the department offish and game and other aquaculture facilities as defined in

\

### 25 ENVIRONMENTAL QUALITY

- HEALTH 

### 39-U8A

the Idaho waste management guidelines for aquaculture operations, shall be submittedto and approved by the directorofthe department ofenvironmental quality before construction may begin and all construction shall be in compliance therewith. The director shallreview plans and specifications within forty-five (45) days ofsubmittal and notifY the owner or responsible party ofapproval or disapproval. In 

### the event ofdisapproval the director shallprovidereasons for disapproval inwriting to the owner orresponsible party. Plans andspecifications shallconforminstyleandqualityto standard industry practices and guidelines developed pursuant to this subsection. The director shall establish industry guidelines orbest management practices subcommittees composed of members of 

### the department, specific regulatoryagenciesfortheindustry, generalpublic, andpersons involvedin theindustryto develop andupdateguidelines orbestmanagementpractices

as needed. Within thirty (30) days ofthe completion ofthe construction, modification, expansion or alteration offacilities subject to this subsectipn, the ownerorresponsibleparty shall submita statementto thedirectorthat the construction has been completed and is in substantial compliance with the plans and specifications as submitted and approved. The director shall conductaninspectionwithin sixty (60) days ofthe date ofsubmissionofthe
statementand shallinformthe ownerorresponsiblepartyofits approval of the constructionorintheeventofnonapproval, thereasonsfornonapproval. [I.C., § 39-U8, as addedby 1973, ch. 136, § 1,p. 267; am. 1974, ch. 23, § 58, p.633;am. 1976,ch. 116,§ l,p.453;am. 1986,ch.60,§ 9,p. 169; am. 1994, ch.290,§ l,p. 910; am. 1996,ch. 80, §.I,p. 262; am. 2000, ch. 132,§ 25, p. 309; am. 2005, ch. 321,§ l,p.988J

.

Compller'. Notes. Section 2 ofS.L

.. 2005, Idaho Code,- to assist the Department ofEnch. 321 provided 'The Director ofthe Depart- vironmenlal Quality in establishing facility ment ofEnvironmental Qualityshall appoint standards and design standards for such faa committee of licensed' professional engi- cilities. Such standards shall be adopted no neerswhoareregularlyengagedinthedesign later than June 30, 2006." of faciliti

.. regulated by Section 39-118(1),



### 39·1ISA. Ore 

### processingby cyanidation.

- (1) All plans and specifications for the construction ofa cyanidation facility shallbe submittedto and approved by the department before construction may begin, and all constructionshallbeincompliancetherewith. Withinthirty (30) days ofthe completion ofsuch construction, modification or expansion, complete and accurate plans and specifications depicting that actual construction, modification orexpansiondoes notdeviate from the original approvedplans and specifications, shall be submitted to the department. All plans and specifications submitted to satisfY the requirements of this section shall be certified byregistered professional engineers.

(2)(a) Acyanidation facility shall notbe constructed, operated, or closed prior to a permit being obtained from the department. (b) Weatherpermitting, the director shall deliver to the operator within

one hundred eighty (180) days after the receipt of a complete permit application the notice ofrejection or notice ofapproval ofthe permit, as the case may be, provided however, that, subject to the provisions of subsection (3) ofthis 

### section, if 

### the director fails to deliver a notice of39-1l8A HEALTHAND SAFETY 26

approval ornotice ofrejection within the time period, the permit submitted shall be deemed to comply with this chapter, and the operator may

commence tobuild, operate orclose the cyanidationfacility coveredbythe permit, as the case may be, as ifa notice ofapproval ofthe permit had been received from the director. Provided however, that if weather conditions preventthe directorfrom inspecting the cyanidationfacility to obtain information needed to approve or reject a submitted permit, he may, in writing to the operator, extend the time not to exceed thirty (30) days after weather conditions permit such inspection. (c) The director may require a reasonable fee for processing permit applications. (3)(a) Prior to the effective date ofrules promulgated under chapter 15, title 47, Idaho Code, the departmentis authorizedto issue a permitunder subsection (2) of this section if the cyanidation facility has provided financial assurance underthe provisions ofIDAPA58.01.13 in an amount determined by the department to be the estimated reasonable costs to complete the activities specifiedinthepermanentclosureplanrequiredin IDAPA 58.01.13, in the event ofthe failure of an operator to complete those activities, plus ten percent (10%) of such costs. In setting the
amount offinancial assurance, the department shall avoid duplication with any financial assurance, bonds and sureties deposited with other governmental agencies. (b) After the effective date ofrules promulgated under chapter 15, title 47, Idaho Code, the department shall notissue a permitunder subsection (2) ofthis sectionunless the cyanidationfacility has satisfiedthe financial

assurancerequirements ofchapter 15, title47, Idaho Code, relatingto ore processing by cyanidation. (4) A cyanidation facility with an existing permit approved by the departmentpriorto July 1, 2005, shallbe subjectto the applicable laws and rules for ore processingby cyanidationin effectonJune 30, 2005. Ifthere is

a material modification or a material expansion of a cyanidation facility after June 30, 2005, all provisions of this chapter shall apply to the modification or expansion; provided however, that reclamation or closure related activities at a facility with an existing cyanidation permit approved by the department that did not actively add cyanide afterJanuary 1, 2005, shall notbe consideredtobe material modifications or a material expansion ofthe facility.

(5) The department shallpromulgate temporary rules byAugust 1, 2005,
toimplementtheprovisions ofthis act; however, norulemakingis necessary,
norshallberequired, toincreasethe amountoffinancial assuranceprovided bythedepartment'sinterim authorityundersubsection (3)(a) ofthis section. [I.C., § 39-1l8A, as added by 1987, ch. 356, § 1, p. 789; am. 2005, ch. 167, § 2, p. 509.]

Compiler'sNotes. Sections 1 and 3 ofS.L. 2005, ch. 167 are compiled as §§ 39-103 and 47-1501, respectively.27 ENVIRONMENTAL QUALITY

- HEALTH 39-130

39-124. Legislative findings

- Intent. [Effective until April 7, 2008.]

- The legislature finds that it is in the public interest 

### to adopt an integrated energy plan for the state ofIdaho that provides for the state's powergeneration needs and protects the health and safetyofthe citizens of Idaho, and the products produced in this state. The legislature has determined thatthere is a need forinformation and study on matters such as air and water quality impacts, effects on existing industries, and allocation of
waterresources, withregardto energydevelopment. Thelegislaturefurther finds that certain coal fired power plants may have a significant negative impact upon the health, safety and welfare· ofthe population, the quality and financial security of existing agricultural businesses andinduatries, economic growth ofthe state ofIdaho, and the environmental quality. and naturalresources ofthis state. To betterunderstand.the environmental and economiceffects ofcertain coalfiredpowerplants, thelegislaturebelieves it is desirable and in the public interest to place a two (2) year moratorium from the effective date ofthis act on certain coal fired power plants. [I.C., § 39-124, as added by 2006, ch. 367, § 1, p. 1105.]

Compiler's Notes. Section 2 ofS.L. 2006, ch. 367 provided "An emergency existing therefor, which emergencyis hereby declared toexist, this actshall beinfull force and effect

onand afterits passageand approval [April7, 2006], and shall be null, void and ofno force and effect on and aftertwo (2) calendaryears from the effective date ofthis act' [April 7, 2006]. Thus, this section becomes null and void onApril 7, 2008.

39-125. Moratorium on constrUction ofcertain coal fired power plants

- Report. [Effective until April 7, 2008.]

- For two (2) years from the effective date ofthis act, municipalities, counties and the department ofenvironmental.quality are prohibited from issuing any variances, licenses or permits for the construction or operation of coal fired power plants and no persons or entities shall apply for such variances, licenses or local conditional use, orbuilding or airpermits; providedhowever, that the provisions ofthis act do not apply to power plants utilizing the integrated gasification combinedcycletechnologywherecoalis notburnedbutoxidized

as a power source. The provisions ofthis act do not applyto coalfiredpower plants owned or constructed by a public utility regulated by the public utilities commissionpursuantto title 61, Idaho Code, orby a cooperative or

amunicipality, nordo theprovisions ofthis act applytotheoperations ofthe Idahonational laboratory. [I.C., § 39-125, as addedby2006, ch. 367, § 1, p.**IW~** 

### .**Compi1~r'8** Notes.' Fariner §.3'9-125;" which comprised I.e., § 39-125, as added by 1989, ch. 421, § 2, p. 1027, was repealed by S.L. 2000, ch. 132, § 30, effective July I, 2000.

Section 2ofS.L. 2006, ch. 367provided "An omergency existing therefor, which emerKeney is hereby declared to exist, this act sHallbe in full force and effecton and afterits passage and approval [April 7, 20061, and shall benull,void andofnoforce and effecton and after two (2) calendar years from the effective dateofthis act [April 7, 2006]. Thus, this section becomes null and void onApril 7, 2008.

39-130. Removal

- Remediation

- Bunker 

### Hill mUllng and metallurgical complex superfund facility.

- Notwithstanding any39-175 HEALTHAND SAFETY 28

otherprovision oflaw to the contrary, removal andremediation actions inor related to any operable unit ofthe Bunker 

### Hill mining and metallurgical complex superfund facility performed by or on behalfofthe department of environmental quality shallnotconstitutepublicworks pursuantto chapter 57, title 67, Idaho Code, chapter 19, title 54, Idaho Code, or any other provision ofIdaho Code. In the letting and oversight ofcontracts for such removalorremediationactions, bondingofcontractors mayberequired. The administrator of the division of waste and remediation, department of environmental quality, and the directorofthe departmentofenvironmental quality, shall have the authority of the administrator of the division of purchasing, department ofadministration, and the director ofthe department ofadministration, respectively, in requiring open competitive bidding pursuantto sections 67-5715 through 67-5718A, 67-5725, 67-5726, 67-5729, 67-5730 and 67-5733, Idaho Code, and any relevantrules ofthe department ofadministration. [I.C., § 39-130, as added by 2007, ch. 123, § 1, p. 373.]



### 39·175. [Reserved.]

39·175A. Legislative findings and purposes. - (1) The legislature finds: (a) That navigable waters within the state are one ofthe state's most valuable natural resources; (b) That 

### it is in the public interest to promote effective and efficient regulation ofthe discharge ofpollutants into navigable waters, and to explore whether the state should control such permitting decisions as authorized under the federal clean water act; (c) Thatthecleanwateractallows a stateto develop andimplement, with approval from the United States environmental protection agency, a national pollutant discharge elimination system (NPDES) program to be administered by the state; (d) That the clean water act, as amended, and regulations adopted pursuantthereto, establishcomplexanddetailedprovisions forregulation ofthose who discharge pollutants into navigable waters; (e) That a stateprogramtoimplementpermittingdecisions as authorized in the clean water act, and regulations adopted pursuant thereto may enable the state to issue flexible permits consistentwith the clean water act and avoid the existence ofduplicative, overlappingorconflicting state and federal regulatory systems; (D That a state program must be run with a minimum of federal interferenceinpermitting, inspection and enforcementactivities and that all state permitting actions under the approved state program are to be
state actions and are not subject to consultation under the endangered species act or analysis underthe provisions ofthenational environmental policy act. There shouldbe no conditions ofapproval ofthe stateprogram which have the effect ofundermining or circumventing this principle; (g) That the decision to accept delegation ofauthority from the environmental protection agency to operate an NPDES program has siguiflcant public policy implications that should be made by the legislature.

### 29 ENVIRONMENTAL QUALITY

- HEALTH 

### 39-175C

(2) Therefore, itis,the intent ofthe legislature to establish requirements that mustbe satisfied prior to legislative approval of

### a permittingprogram that complies with the clean water act and which incorporates flexible permitting. procedures and rules to be promulgated.by the board. [I.C., § 39-175A, as added by 2005, ch. 57, § 1, p. 211.]

.

Compiler's Notes. The federal clean wa- teractis codifiedas 33 U.S.C.S. § 1251 etseq.



### 39-175B. Relationship between state and federal la.w.

- 'The legislature cannot conveniently or advantageously setforth in this chapter all the requirements ofall ofthe regulations which have been'bt will be established under the clean'water act. However, any state permitting program must avoid the existence ofduplicative, overlapping or conflicting state and federal regulatory systems. Further, the board may promulgate rules to 'implement a state permitting program but such rules shall not impose conditions orrequirements more stringent orbroaderin scope than the cleanwater act andregulations adoptedpursuant thereto. Further, the department will not require NPDES permits for activities and sources not required to have permits by the'United States environmental protection agency. [I.C.,§ 39-175B, as added by 2005, ch. 57, § 1, p. 211.]

Compiler's Notes. The federal clean wa- teractis codifiedas 33U.s.C.S. § 1251 etseq.



### 39-175C. ApprovalofstateNPDES program.

- (1) 

### The department is authorized to eJqllore whether the state, should operate an NPDES programbyevaluatingthe.costs andbenefits tothe state, ofst(chaprogram, consistent'with the requirements of this section. The department shall prepare a report to the legislature as to its findings by Decemb!lr 31, 2005. (2) The board is authorized to proceed with negotiat!ld rulemaking 'and all other actions that may eventually be necessary to obtain approval ofa state NPDES program by the United States environmental protection agency. ' . , "., ,,',
,

(3) The director shannot execute a memorandum ofagr!lementwiththe United States environmental protection agency to bbtain NPDES prog'l'am approval as sp!lcified und!lr section 402 ofthe clean wat!lr act and 40 CFR 123 until completion ofany required consultation iuldissuance ofany final biological 'opinion or biological assessment under'the endangered species act.

" (4)-Any'memorandum of agreement executed by.the director to obtain

approval to operate a state NPDES program shall not be binding on the state of

### Idaho unI!lsS authorized by enactment ofa statute. Any memorandum ofagreementnot authorized in the above manner shall be ofno force and effect.

(5) Implementation ofa state NPDES program shan not occur prior to statutory enactment of implem!lnting legislation and authorization of a memorandum ofagre!lment as specified in subsection (4) ofthis section.

(6) No provision of this chapter shall b!l int!lrpr!lted as to supersede, abrogate, injure or createrights to divert or store waterand applywaterto

### 39-241 HEALTH AND SAFETY 

### 30

beneficialuses establishedunder section 3, article

### XV; oftheconstitutionof the state ofIdaho, and title 42, Idaho Code. (7) Nothing in this section is 

### intended to supersede any existing agreements between federal, state or local agencies regarding authority over inspections, enforcement or other obligations under the clean water act. [I.C., § 

### 39-175C, as added by 2005, ch. 57, § 

### 1, p. 211.]

Compiler'sNotes. Section402afthaclean The clean water act is codified as 33 water act, referred to in subsection (3), is U.S.C.S. § 1251 et seq. codified as 33 U.S.C. 1342.



### CHAPI'ER2

VITAL STATISTICS

VITAL STATISTICS ACT

SECTION. 39-241. Definitione, 39-258. Adoption ofpereone born in IdahoNew birth certificate issued to replace onginal certificate

- Procedure

- Adoption proceedings not open to**inspec~** tiOD with certainexceptions

- Duties ofthe clerka ofcourts. issuing adoption decrees

- SECTION. Duties ofstate registrar ofvital statistics. 39-259. Adoption of persons born in foreign countries. 39-260. Regietration of deathe and etillbirths. 39-268. Authorization for finall;tisposition. 39-269. Dieinterment

- Hulce. 39-270. Disclosure ofinformation. 39-277. Autopsies for suspected CreutzfeldtJakob disease

..

VITAL STATISTICSACT



### 39·241. Definitions.

- 

### For the pID-poses of this chapter arid this chapter only, the following terms shall he constru!,d to have the meanings hereinafter set forth: (1) "Adoptive parent" means an adultwho has become a parent'ofa child through'the legal process ofadoption. ' (2) "Advanced practice professional nurse" means a profess.iOl;lal nurse licensed in this state who, has gaiped additional specialized knowledge, skills and expepence through a nationally accreditedprogramofstudy and is authorized to 

### perform advanced nursing practice as defined,in section 54-1402, Idaho Code, and includes certified nurse midwives and nurse practitioners as defined.in the same section. (3) "Board" means the Idaho state board of

### health and welfare. (4) "Certified copy" means the reproduction ofan original vital record by typewritten. photographic or**ele~trf;),n.i!,** IlWU1S. 

### Su@**reproduct~~,.when,** 

### certified by the state registrar, shall be used as the original. (5) "Consent" means a verified written statement which has been notarized. (6) "Deadbody" means a lifeless humanbody orsuchparts ofthe human body or the bones thereoffrom the state ofwhich it 

### reasonably may be concluded that death occurred. (7) "Director"means the directorofthe departmentofhealthand**we~e,** 

### (8) "Fetal death" means death prior to the complete expulsionor extraction from its mother ofa product ofhuman conception. irrespective ofthe

# IDAHO CODE

CONTAINING THE 

# GENERALLAWS OFIDAHO

ANNOTATED

ORIGINALLY PUBLISHED BY AUTHORITY OF LAWS 1947, CHAPTER 224

REPUBLISHED BY AUTHORITY OF LAWS 1949, CHAPTER 167 AS AMENDED



### Compiled Under the Supervision ofthe Idaho Code Commission

R. 

### DANIEL BOWEN
THOMAS A. 

### MILLER RICHARD F. GOODSON
COMMISSIONERS

MAXM. SHEILS, JR. 

### EXECUTIVE SECRETARY



### TITLES 38, 39 (1-43)

# ?~~~MICHIELEX/S, NEX/S, Shepard's and Martindale-Hubbell are registered trademarks. LEXIS Publishing and MICHIE are trademarks and lexis.com is a service mark ofReed Elsevier Properties Inc., used underlicense. Matthew Benderis aregistered trademarkofMatthewBenderProperties Inc.

© 2002 Matthew Bender & Company. Inc. Al! rights reserved,



### 4226712

ISBN 0-327-03976-0

flMichie" and the Open Book and Gavel logo are tndemarks of LEXIS Publishing, a division of Reed Elsevier Inc.

### PUBLISHER'S NOTE

Since the publication in 1994 ofReplacement Titles 38, 39 (1-43) many lawshavebeen amended orrepealed andmanynew lawshavebeen enacted. The resulting increase in the size ofthe cumulative supplement for Titles 38, 39 (1-43) has made it necessary to revise this volume. Accordingly, ReplacementTitles 38, 39 (1-43) is issued with the approval and under the direction ofthe Idaho Code Commission.

To better serve our customers, by making our annotations more current, LexisNexis has changed the sources that are read to create annotations for this publication. Rather than waiting for cases to appear in printed reporters, court decisions are now being read as they are released by the
courts. A consequence of this more current reading of cases, as they are posted on texis.com, is that the most recent cases annotated may not yet have print reporter citations. These will be provided, as they become available, through later publications.

This publication contains contains annotations taken from decisions of the enacted by the Idaho Supreme Courtand the Court ofAppeals, and the appropriate federal courts, posted on texis.com as ofMarch 19, 2002. These

cases will be printed in the following reports:

Pacific Reporter, 3rd Series Federal Supplement, 2nd Series Federal Reporter, 3rd Series United States Supreme Court Reports, Lawyers' Edition, 2nd Series Additionally, annotations have been taken from the following sources:
American Law ReJlorts, 5th Series, through Volume 93 American Law Reports, Federal Series, through Volume 173 Opinions ofAttorney General, 2001-3 Following is an explanation ofthe abbreviations ofthe Court Rules used throughout the Idaho Code.



### I.R.C.P. I.R.E. I.C.R. M.C.R. I.I.R. I.J.R. LCAR. IAR. Idaho Rules ofCivil Procedure Idaho Rules ofEvidence Idaho Criminal Rules Misdemeanor Criminal Rules Idaho Infraction Rules Idaho Juvenile Rules Idaho CourtAdministrative Rules Idaho Appellate Rules

If you have any questions or suggestions concerning the Idaho Code, please write or call toll free 1-800-833-9844, fax toll free at 1-800-643-1280,

or email usatcustomer.support@bender.com.

III

### TITLE 39

HEALTH AND SAFETY

CIW'l'ER. 1. ENVIRONMENTAL QUALITY

- HEALTH, §§ 39- 101- 39-174. 2. VrrAL STATISTICS, §§ 39-201

- 39-276. 3. ALcoHOLISM AND INTOXICATION 'I'REATMENTAer, §§ 39-300

- 39-316. 4. !'UBuc HEALTH DISTIUCTS, §§ 39-401

- 39- 427.

5. HOSPITALIZATION OF TuaERCULOSIS PATIENTS. [REpEALED.! 6. CONTROL OF VENEREAL DISEASES, §§ 39·601 -39-610.

7. ADVERTISING CURES FOR SEXUAL DISORDERS. [REPEALED.] 8. CoNTRACEPTIVES AND PROPHYLACTICS, §§. 39- 801

- 39-810. 9. PREvErmON OF BLINDNESS AND OTHER PREVENTABLE DISEASES IN INFANTS, §§ 39-901 -39-912. 10. PREvENTION OF CONGENITAL SYPHn.rs, §§ 39- 1001- 39-1006. 11. BASIC DAY CARE LICENSE, §§ 39-1101

- 39-1119. 12. CHn.D CARE LICENSING REFORM Ac:r, §§ 39- 1201- 39-1224.
13. HOSPITAL LICENSES AND INSPECTION, §§ 39- 1301- 39-1395. 14. HEALTH FACILITIES, §§ 39-1401

- 39- 1460. 15. CARE OF BIOLOGICAL PRODUCTS, §§ 39-1501

- 39-1503. 16. FOOD ESTABUSHMENT Ar:r, §§ 39-1601

- 39-1613.

17. HEAL'fH REGtJI..ATIONS FOR EATING PLACES AND FOOD EsrABLISHMENTS

- GRADING AND LICENSING. [REPEALED.] 18. HOTELS AND FOOD VENDING EsrABLISHMENTS

- REGULATIONS AND INSPECTION, §§ 39- 1801- 39-1834. 19. FIIlE EscAPES AND DOORS, §§ 39-1901

- 39-1905.

20. BARBER SHOPS, HAmoRESSING ESTABLISHCHAPTER. MENTS AND PuBLIC BATHING PLACES, §§ 39- 2001

- 39-2003. 21. MAtuaNGOF EXPLOSIVES, §§ 39-2101

- 39- 2103.

22. LIQUEFIED PETROLEUM GASES. [REPEALED.] 23. SMOKE MANAGEMENT. [REPEALED.] 24. HOME HEALTH AGENCIES, §§ 39·2401

- 39-2411. 25. SPEED, EQUIPMENT AND '!'RAFFle REGULATIONS FOR BOATS AND WATERCRAFT. (REPEALED.] 26. F'REWORKS, §§ 39-2601

- 39-2630.

27. PLUMBING AND PLUMBERS. [TRANSFERRED OR REPEALED.] 28. MOSQUITO ABATEMENT DISTRICTS, §§ 39- 2801

- 39·2811. 29. AIR POLLUTION CONTROLAc:r. [REPEALED.]
30. RADIATION AND NUCLEAR MATERIAL, §§ 39- 3001

- 39·3030. 31. REGIONAL MENTAL HEALTH SERVICES, §§ 39- 3101

- 39-3139.
32. BUILDING FAClLITIES FOR PHYSICALLY HANDICAPPED. [REpEALED.] 33. IDAHO BOAR.DAND CAREAr:r, §§ 39-3301- 39-3393. 34. 1DAHOANATOM'CALGIFTAr:r, §§ 39-3401- 39-3418. 35. RESIDENTIAL CARE FOR THE ELDERLY, §§ 39- 3501

- 39-3580. 36. WATER QUALITY, §§ 39-3601

- 39-3639. 37. ANATOMICAL TISSUE, ORGAN, FLUID DONAT'ONS, §§ 39-3701

- 39-3703. 38. MINORS

- CONSENT TO TREATMENT, § 39- 380l. 39. STER'UZATlON, §§ 39-3901

- 39·3910. 40. MOBILE HOMES AND RECREATIONAL VEHICLES

- STANDARDS, §§ 39-4001

- 39-4011. 41. IDAHO BUILDING CODE Ac:r, §§ 39-4101

- 39-4131. 42. RECREATIONAL VEHICLES AND PARK '!'RAILERS, §§ 39-4201

- 39-4203. 43. MEDICALCONSENT, §§ 39·4301-39-4306.

CHAPTER 1

ENVlRONMENTAL QUAL1TY

- HEALTH

SECTION. 39-101. Short title. 39-102. State policy on environmental protection.

39-102A. Legislative intent in creating department of environmental quality. 39-103. Definitions.



### 93 SECTION. 39-104. Department of environmental quality

- Creation. 39-104A. Authority to make rules regulating large swine and poultry feedingoperations

- Financial assurances. 39·104b. [Amended and Redesignated.!39-101 HEALTHAND SAFETY 94

SECTION. 39-104c. [Repealed.] 39-105. Powers and duties ofthe director. 39-106. Director

- Additional powers and duties

- Transfer and continuation ofrules and other proceedings. 39-107. Board

- Composition

- Officers

- Compensation

- Powers

- Subpoena

- Depositions

- Review

- Rules. 39-107A. Real property in Bunker Hill cleanup site. 39-107B. Departmentofenvironmental quality fund.**39~107C.** Environmental protection trust fund established. 39-107D. Rules ofdepartment or board. 39-108. Investigation

- Inspection

- Right of entry

- Violation

- Enforcement

- Penalty

- Injunctions. 39-109. Commencement ofcivil enforcement actions

- Criminal actions authorized

- Duties ofattorney general. 39-110. Registration of persons engaged in operations or construction where air pollution is a factor

- Reports. 39-111. Availability ofrecords. 39-112. Emergency

- Order

- Hearing

- Modification, affirmance, or setting aside. 39-113. Transfer ofemployees. 39-114. [Repealed.] 39-115. Pollution source permits. 39-116. Compliance schedules. 39-117. Criminal violation

- Penalty. 39-118. Review ofplans. 39-llBA. Ore processing by cyanidation. SECTION. 39-118B. Relationship to federal law. 39-118C. Legislative findings and declaration ofpurpose. 39-ll8D. Idaho air quality permitting fund. 39-ll8E. Sman business assistance. 39-119. Collection offees for services. 39-120. Department of environmental quality primary administrative agency

- Agency responsibilities. 39-121. Definitions. 39-122

- 39-125. [Repealed.] 39-126. Duties of state and local units of government. 39-127. Application of fertilizers and pesticides. 39-128. Applicability

- Promulgation of rules

- Establishment of

zones

- Combustor charging composition and recordkeeping

- Report to local government

- Permitprocessing. 39-129. Applicability

- Definition of local government and mandates

- Authorization for localgovernment agreements

- Adoption of rules

- Establishment of schedules

- Priority of considerations

- Report and recommendations. 39-130. [Repealed.) 39-131

- 39-136. [Repealed.l 39-137

- 39-138. [Reserved.l 39-139

- 39-170. [Amended and Redesignated.] 39-171. Legislative findings and purpose. 39-172. Definitions. 39-173. Committee

- Members

- Terms. 39-174. Committee duties

- Meetings.

39·101. Short title.

- Sections 39-101 through 39·130, Idaho Code, maybeknown andcited as the "IdahoEnvironmental Protection andHealth Act." [1972, ch. 347, § 1, p. 1017; am. 1986, ch. 60, § 1, p. 169.]

Compiler's notes. The reference in this section to "Sections 39-101 through 39·130, Idaho Code" should probably read "Sections 39-101- 39-104,39-105

- 39-107,39-108- 39-119, Idaho Code" since § 39-104ahas been repealed, § 39-104b has beentransferred and §§ 39-104c, 39-107a, 39-107b, have been repealed and former §§ 39-120

- 39-128 were repealed in 1972 and present §§ 39-120

- 39-127 were enacted in 1989 and § 39-130 has been repealed.

Former sections 39-101

- 39-128, 39-130, which comprised S.L. 1967, ch. 311, §§ 1-26, p. 870; am. 1969, ch. 13, § 1, p. 18; am. 1969, ch. 16,§ 1,p. 28; 1969,ch. 337, § 1,p. 1060; I.C., § 39-128, as added by 1970, ch. 18, § 1, p. 33; I.C., § 39-130, as addedby 1971, ch. 42, § 1, p. 89; am. 1971, ch. 136, § 24, p. 522; I.C., § 39-1l2A, as added by 1971, ch. 365, § 1, p. 1361; 1972, ch. 44, § 4, were repealed by S.L. 1972, ch. 347, § 14, p. 1017.

Section 2 ors.L. 1986, ch. 60 is compiled as § 39-108.

Cross ref. Administration and enforcement ofuse ofbreed nameofcattle on label of milk and milk products act, §§ 37-339

- 37-343.

Birth and death registrations, duty to enforce law governing, §**39~241** et seq.

Cityandcountyhospitals, § 31-3701 etseq. County environmental pollution control facilities, financing, §§**31~4501** - 31-4516.

Director, duties in prevention ofinfant diseases and blindness, § 39-906.

### 95 ENVIRONMENTAL QUALITY

- HEALTH 39-102

Educational institutions, title 33, Food EstablishmentAct, §§ 39-1601

- 39- 1608.

Inflammation of eyes of newborn infants, duties, § 39-906.

Permit issued to seller of milk or milk products to use breed name ofdairy cattle on label, § 37-340.

Probation officers providing services to counties, § 20-529.

Registration of deaths, births and marriages, § 39-241 et seq.

Veterans' home, § 66-901 et seq. Sec. to seC. ref. This chapteris referred to in §§ 22-1408,39-414, 39-7401.

This section is referred to in § 42-3903A.

ANALYSIS
Limitation on actions. -Nuisance, Nuisance claims not preempted.
Limitation onActions.

Since Idaho's Environmental Protection and HealthAct (§§ 39-101- 39-130) does not provide its own statute oflimitation, the**four~** year limitation providedby § 5-224 applies to actions brought under it. Aetna Cas. & Sur. Co. v. GulfResources & Chern. Corp., 600 F. Supp. 797 (D. Idaho 1985).
-Nuisance.

Where a complaint ofnuisance is permaw nent, the cause ofaction must be commenced within four years from the date the permanentnuisance was created oroccurred; where the nuisance is temporary and continuing in nature, the statuteoflimitations does notrun and an action may be brought at any time to

recover damages occurring within the previous limitationperiod.Aetna Cas. & Sur. Co. v. GulfResources & Chem. Corp., 600 F. Supp. 797 (0. Idaho 1985).

Nuisance Claims Not Preempted.

The Environmental ProtectionAct does not preempt common law nuisance claims. Idaho

v. BunkerHill Co., 635 F. Supp. 665 (0. Idaho 1986); Idaho v. Hanna Mining Co., 699 F. Supp. 827 (0. Idaho 1987), afI"d, 882 F.2d 392 (9th Cir. 1989). Collateral References. 39 Am. Jur. 2d, Health, §§ 1, 4, 16-23.

39AC.J.S., Health and Environment, §§ 3, 7-9, 20-57.

Health ordinances as an unlawful interfer

w ence with business. 6 A.L.R. 1410.

Regulating businesses deleterious to the public health, morals, safety or welfare. 6 A.L.R. 1593.

Power ofboard ofhealth to designate what

are contagious or infectious diseases. 22 A.L.R. 835.

Delegation to health officer of power to protect the health ofa city. 22A.L.R. 835.

Arbitrary power of boards of health. 22 A.L.R. 1178.

Powerofboard ofhealthtoprescribemeans ofkeeping the water supply free from impu

w rities. 23 A.L.R. 228.

Delegation to board ofhealth ofpower to regulate milk. 58 A.L.R. 672; 80A.L.R. 1225; 101 A.L.R. 64; 110A.L.R. 644; 119A.L.R. 243; 155 A.L.R. 1383.

Delegation to board ofhealth ofpower over buildings. 114A.L.R. 446.

Delegation to board ofhealth ofpower to administer a health service for municipal employees. 126A.L.R. 838.

Constitutional rights of owner as against destruction ofbuilding by public authorities. 14A.L.R.2d 73.

Health regulations requiring submission to physical examination or test as violation of constitutIonal rights. 25 A.L.R.2d 1415.

Power of court or other public agency to order medical treatment over parental reli

w gious objections for child whose life is not immediately endangered. 21 A.L.R.5th 248.

Power of court or other public agency to order medical treatment for child overparen w tal objections not based on religious grounds. 97 A.L.R.3d 421.

Amount and characteristics of wastes as equitable factors in allocation of response costs pursuant to § 113(0(1) of ComprehensiveEnvironmentalResponse, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9613(0(1): multiple waste streams. 162 A.L.R. Fed. 371.



### 39-102. State policy on environmental protection.

- 1. It 

### is hereby recognized by the legislature that the protection ofthe environment and the promotion ofpersonal health are vital concerns and are therefore of great importance to the future welfare ofthis state. It is therefore declared
to be the policy ofthe state to provide for the protection ofthe environment and the promotion ofpersonal health and to thereby protect and promote the health, safety and general welfare ofthe people ofthis state.

2. The goal of the legislature in enacting the ground water quality protection act of 1989 shall be to maintain the existing high quality ofthe39-102A HEALTHAND SAFETY 

### 96

state's ground water and to satisfY existing and projected future beneficial

uses including drinking water, agricultural, industrial and aquacultural water supplies. All ground water shall be protected as a valuable public

resource against unreasonable contamination or deterioration. The quality ofdegraded ground water shall be restored where feasible and appropriate
to support identified beneficial uses. 3. In enacting this law, the legislature intends to prevent contamination ofground water from point and nonpoint sources ofcontamination to the maximum extent practical. In attaining the goals enumerated in subsections 1 and 2 of this section, the legislature wishes to enumerate the following ground water quality protection goals:

a. It is the policy ofthe state to prevent contamination ofground water from any source to the maximum extent practical. b. The discovery ofany contamination that poses a threat to existing or projected future beneficial uses ofground water shall require appropriate actions to prevent further contamination. These actions may consist of investigation and evaluation or enforcement actions ifnecessary to stop further contamination or clean up existing contamination as required under the environmental protection and health act.

c. All persons in the state should conducttheir activities so as to prevent the nonregulated release ofcontaminants into ground water. d. Education of the citizens of the state is necessary to preserve and
restore ground water quality. [1972, ch. 347, § 2, p. 1017; am. 1989, ch. 421, § I, p. 1027.]

Compiler's notes. Section 2 ofS.L. 1989, Sec. to sec. ref. This section is refel,Ted to ch. 421 is compiled as §§ 39-120

- 39-127. in § 39-121.



### 39.102A. Legislative intent in creating department of environmental quality.

- The legislature finds and declares that: (1) The creation and establishment ofthe department ofenvironmental quality to protect human health and the environment as its sole mission is in the public's interest; (2) That all existing, but no new rights, powers, duties, budgets, funds, contracts, rulemaking proceedings, administrative proceedings, contested
cases, civil actions, and other matters relating to environmental protection

as described in this chapter, vested in the director of the department of health and welfare and the board ofhealth and welfare on January 1, 2000, shall be transferred to the board ofenvironmental quality, the department ofenvironmental quality and its director as described herein effective July 1,2000;

(3) That protecting environmental values including, but not limited to, clean air, water and soil, reducing or eliminating environmental pollution arising from human activities, ensuring the proper treatment, storage and disposal ofhazardous wastes and ensuring the proper cleanup and restoration ofexisting natural resources are vital interests ofthe state ofIdaho; (4) That it is in the interest ofthe state and its citizens to establish a department of environmental quality to carry out programs to protect human health and the environment, to enforce environmental laws and97 ENVIRONMENTAL QUALITY

- HEALTH 39-103

develop pollution prevention. compliance assistance and other environmental incentive programs:

(5) That the goals to protect human health and the environment can be best achieved by vesting responsibility for environmental protection as specified herein in a state department which has as its sole mission, protection for human health and the environment for the state ofIdaho and its residents; (6) The legislature further intends that environmental quality programs be promulgated and managed sucb that the benefits of pollution control

measures have a reasonable relationship to the public health costs, private property rights, environmental, economic and energy impacts of such
measures, provided thatthis section does notrequire the preparation ofany economic, environmental or other statement;

(7) That the department of environmental quality shall utilize the designated program appropriations made to the department ofhealth and welfare for environmental program functions, the division ofenvironmental quality and the INEEL oversight program for fiscal year 2001. [I.e., § 39-102A, as added by 2000, ch. 132, § 4, p. 309.J

Compiler's notes. Section 3 ofS.L. '.2000. eh. 132, is compiled as

## * 59-904.

Section 39 of S.L. 2000, eh. 132 provides: ''(1) This actshall be in full force and effect on and after July 1, 2000, except that the Di\'isian ofEnvironmentaJ Quality shall huv€'one (1J year thereafter to accomplish necessary changes to complete the physical tran!>ition to the new department.

(2) Not\

... ·ithstanding any other provi:;ions of Chapter 52. Title 67. Idaho Code. the Administrative Rule:; Coordinator shall redesignate all references to the Division ofEndronmental Quality which appear in the master rule database maintained by the coordinator. to the Department ofEnvironmental Quality without further republication or promulgation. to comply with the**provi~ions** ofthis act. L'ntil :;uch time as a republication of a rule

occurs. any reference in a rule to the Division of**Enviro~mental** Quality shall mean the Department ofEnvironmental Quality."

39-103. Definitions.

- Whenever used or referred to in this act. unless

a different meaning clearly appears from the context, the following terms shall have the following meanings:

(1) "Air contaminant" or "air contamination" means the presence in the outdoor atmosphere ofany dust, fume, mist, smoke, radionuclide, vapor, gas

orothergaseous fluid or particulate substance differing in composition from

or exceeding in concentration the natural components ofthe atmosphere. (2) "Air pollution" means the presence in the outdoor atmosphere ofany contaminant or combination thereof in such quantity of such nature and duration and under such conditions as would be injurious to human health

or welfare, to animal or plant life. or to property. or to interfere unreasonably with the enjoyment oflife or property.

(3) "Board" means the board ofenvironmental quality. (4) "Department" means the department ofenvironmental quality. (5) "Director" means the director of the department of environmental quality or the director's designee.

(6) "Emission" means any controlled or uncontrolled release or discharge into the outdoor atmosphere ofany air contaminant or combination thereof. Emission also includes any release ordischarge ofany air contaminantfrom39-103 HEALTH AND SAFETY 

### 98

a stack, vent or other means into the outdoor atmosphere that originates from an emission unit. (7) "Laboratory" means not only facilities for biological, serological, biophysical, cytological and pathological tests, but also facilities for the chemical orother examination ofmaterials from water or other substances.

(8) "Medical waste combustor" means any device, incinerator, furnace, boiler or burner, and any and all appurtenances thereto, which burns or pyrolyzes medical waste consisting of human or animal tissues, medical cultures, human blood or blood products, materials contaminated with human blood or tissues, used or unused surgical wastes, used or unused sharps, including hypodermic needles, suture needles, syringes and scalpel blades. (9) "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. (10) "Publicwatersupply"means all mains, pipes and structures through which water is obtained and distributed to the public, including wells and well structures, intakes and cribs, pumping stations, treatment plants, reservoirs, storage tanks and appurtenances, collectively or severally, actuallyused orintendedfor usefor the purpose offurnishingwaterfordrinking

or general domestic use in incorporated municipalities; or unincorporated communities where ten (10) or more separate premises or households are being served or intended to be served; or any other supply which serves water to the public and which the department declares to have potential health significance. (11) "Solid waste" means garbage, refuse, radionuclides and other discarded solid materials, including solid waste materials resulting from industrial, commercial and agricultural operations and from community activities but does not include solid or dissolved materials in domestic sewage or other significant pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows or other common water pollutants.

(12) "Solid waste disposal" means the collection, storage, treatment, utilization, processing or final disposal ofsolid waste. (13) "State" means the state ofIdaho. (14) "Substantive" means that which creates, defines or regulates the rights ofany person or implements, interprets or prescribes law or policy, but does not include statements concerning only the internal management ofthe department and not affectingprivaterights orprocedures available to the public.

(15) "Water pollution" is such alteration ofthe physical, thermal, chemical, biological or radioactive properties ofany waters ofthe state, or such discharge ofany contaminantinto the waters ofthe state as will oris likely
to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare or to domestic, commercial, industrial, recreational, esthetic orotherlegitimate uses orto livestock, wild animals, birds, fish or other aquatic life.99 ENVIRONMENTAL QUALITY

- HEALTH 39-104

(16) "Waters" means all accumulations of water, surface and underground, natural and artificial, public and private orparts thereofwhich are wholly orpartially within, flow through orborderupon this state exceptfor private waters as defined in section 42-212, Idaho Code. [I.C., § 39-103 as added by S.L. 1992, ch. 305, § 4, p. 911; am. 1993, ch. 267, § 1, p. 899; am. 2000, ch. 132, § 5, p. 309.]

Compiler's notes. This section was amended in 1992 by ch. 189, § 3, effective July 1, 1992 and by ch. 305, § 1, effective April 8, 1992. Section 6 ofS.L. 1992, ch. 305 providedthatsuch § 1wouldbecomenulland void and ofnO force and effect March 1, 1993 and that § 3 ofch. 305, which repealed this section (1972, ch. 347, § 3, p. 1017; am. 1973, ch. 143,§ l,p. 279; am. 1974,ch.23,§ 47,p. 633; am. 1978, ch. 45, § 1, p. 80; am. 1989, ch. 308, § 2, p. 762; am. 1990, ch. 357, § 1, p. 965; am. 1992, ch. 305, § 1) and § 4 of ch. 305, which enacted a new § 39-103, would be in full force and effect on March 1, 1993. Therefore, this section is the section as enacted by ch. 305, § 4 and as subsequently amended.

The words "this act" refer to S.L. 1972, ch. 347 whichis compiledas §§ 39-101-39-103, 39-105

- 39-108, 39-110

- 39-113.

Section 2ofS.L. 1973, ch. 143 provided that the act should take effect on and after July 1, 1973.

Section 46 ofS.L. 1974, ch. 23 is compiled

as § 37-2102.

Section 2 ofS.L. 1978, ch. 45 is compiled as § 39-107.

Section 3 ofS.L. 1989, ch. 308 is compiled

as § 39-105.

Section 2 ofS.L. 1992, ch. 189 is compiled

as § 39-128 and § 4 contained a repeal.

Section 5 of S.L. 1992, ch. 305 read: "The provisionsofthis actareherebydeclaredto be severable and ifany provision ofthis act or the application ofsuch provision to any per·
son or circumstance is declared invalid for any reason, such declaration shall not affect the validity ofremaining portionsofthis act."

Section 2 ofS.L. 1993, ch. 267 read: "The provisionsofthis actareherebydeclared to be severable and if any provision ofthis act or the application ofsuch provision to any per·
son or circumstance is declared invalid for any reason, such declaration shall not affect the validity ofremainingportions ofthis act."

Section 2 ofS.L. 1992, ch. 305 which provided for the promulgation ofemergency and permanent rules and regulations to amend the Idaho Department ofHealth and Welfare Rules and Regulations, Title 1, Chapter 1, Rules and Regulations for the Control ofAir Pollution, consistent with that act became effective April 8, 1992 and subsequently be·

came null and void and ofno force and effect

on March I, 1993 as provided in § 6 ofS.L. 1992, ch. 305.

Section 6 of S.L. 1992, ch. 305 read: "An emergency existing therefor, which emergency is hereby declared to exist. Sections 1, 2, and 5 ofthis act shall be in full force and effect on and after passage and approval. Sections 1 and 2 ofthis act shall be null, void and ofno force and effect on and after March 1, 1993. Sections 3 and 4 ofthis actshallbein full force and effect on and after March 1, 1993."

Section 3 of S.L. 1993, ch. 267 read: "An emergency existing therefor, which emergency is hereby declared to exist, all sections ofthis actshall bein full force and effectupon approval and retroactively to March 1, 1993."

Section 39 of S.L. 2000, ch. 132 provides: "(I) Thisactshall beinfull force and effecton and after July I, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division of**Environ~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the De

M partment ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in § 39-6602.

39-104. Department of environmental quality

- Creation.

- (1) There is created and established in the state government a department ofenvironmental quality which shall for the purposes ofsection 20, article IV, ofthe constitution ofthe state ofIdahobe an executive departmentofthe
state government. The executive and administrative power ofthis depart-39-104A HEALTH AND SAFETY 100

ment shall be vested in the director of the department who shall be appointed and serve at the pleasure ofthe governor, with the advice and
consent ofthe senate. (2) Thedepartmentshallbe organizedin suchadministrativedivisions or regions as may be necessary in order to efficiently administer the department. Each division shall be headed by an administrator who shall be appointed by and serve at the pleasure ofthe director. (3) The INEEL coordinator-manager, regional administrators and division administrators shall be nonclassified employees exempt from the provisions ofchapter 53, title 67, Idaho Code. (4) No provision of this title shall be interpreted as to supersede, abrogate, injure orcreate rights to divert or store water and apply water to beneficial uses established under section 3, article XV ofthe constitution of the state ofIdaho and title 42, Idaho Code. Nothing in this title shall be construed to allow the department to establish a water right for minimum
stream flows or a water right for minimum water levels in any lakes, reservoirs or impoundments. Minimum stream flows and minimum water levels may only be established pursuant

### to chapter 15, title 42, Idaho Code. (5) Nothing in this title shall be construed to allow the department to establish orrequire minimum streamflows which would prevent any water from being diverted for irrigation purposes pursuant to existing water rights, or to establish or require minimum water levels in any lakes, reservoirs or impoundments in which any water is stored for irrigation purposes which would adversely affect existing water rights or contracts with the federal government. [1973, ch. 87, § 3, p. 137; I.C., § 39-104b, as
am. andredesig. to § 39-104by 1974, ch. 23, § 48, p. 633; am. 1995, ch. 365, § 1, p. 1276; am. 2000, ch. 132, § 6, p. 309.]

Compiler's notes. A former §**39~104,** which comprised S.L. 1972, ch. 347, § 4, p. 1017, was repealed by S.L. 1974, ch. 23, § 1.

Sections 1, 2, 4-6, 8 and 11 nfS.L. 1973, ch. 87 were repealed, and § 9 is compiled as § 39-3124. Sections 7 and 10 ofS.L. 1973, ch. 87 were repealing and temporary sections.

Section 2 ofS.L. 1995, ch. 365 is compiled

as § 67-2402.

Section 39 ofS.L. 2000, ch. 132 provides: "(1) This act shall be infull force andeffecton and after July I, 2000, except that the Divi

M sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethephysical transition to the new department. (2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Ad· ministrative Rules Coordinator shall**redesig~** nate all references to the Division**ofEnviron~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to complywith the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in §§ 39·5204, 39-5212.

39-104A. Authority to make rules regulating large swine and poultry feeding operations

- Financial assurances.

- (1) The state ofIdaho is experiencing the developmentoflarge swine and poultry feeding operations which are inadequately controlled through existing state regulatory mechanisms. Ifnot properly regulated, these facilities pose a threat 

### to the state's surface and ground water resources. Due to existing rulemaking authority, the department ofenvironmental quality is in the101 ENVIRONMENTAL QUALITY

- HEALTH 39-104A

best position ofall state agencies to modifY its present rules and to make

new rules to develop an adequate regulatory framework for large swine and poultry feeding operations. (2) The department ofenvironmental quality is authorized to modifY its existing administrative rules and to make new rules regulating large swine and poultry feeding operations, as they shall be defined by the department. The department is authorized to work with the Idaho department of agriculture in the development ofsuch rules. (3) Owners and operators of swine and poultry facilities required to obtain a permitfrom the departmentofenvironmental quality to construct, operate, expand or close the facilities shall provide financial assurances demonstrating financial capability to meet requirements for operation and closure ofthe facilities and remediation. Requirements for financial assurances shall be determined by the agency as set forth in rule. Financial

assurances may include any mechanism or combination of mechanisms meeting the requirements established by agency rule including, but not limited to, surety bonds, trust funds, irrevocable letters ofcredit, insurance and corporate guarantees. The mechanism(s) used to demonstrate financial capability must be legally valid, binding and enforceable under applicable law and must ensure that the funds necessary to meet the costs ofclosure and remediation will be available whenever the funds are needed. The directormay retain financial assurances for up tofive (5) years afterclosure ofa facility to ensure proper closure and remediation, as defined by rule. (4) Those swine facilities described in section 39-7905, Idaho Code, shall
meet the requirements ofsection 39-7907, Idaho Code, in addition to the requirements ofthis chapterand the departmentofenvironmental quality's rules regulating swine and poultry facilities, prior to the issuance ofa final permit by the director. The director shall require that swine facilities be constructedin a phasedmannerovera period oftime and thatno additional facilities be constructed until the director approves the associated waste treatment system. The director may require that poultry facilities be constructedin a phasedmannerovera period oftime and thatno additional facilities be constructed until the director approves the associated waste treatment system.

(5) Nothing in this section prohibits the boards ofcounty commissioners ofany county or the governing body ofany city from adopting regulations that are more stringent or that require greater financial assurances than those imposed by the department of environmental quality. A board of county commissioners ofa county or a governing body ofa city in which a swine or poultry facility is located may choose to determine whether the facility is properly closed according to imposed standards ormay leave that determination to the department. This choice shall be communicated to the director in writing when closure begins; provided that determinations of closure by a board ofcounty commissioners ofa county or a governing body ofa city in which the swine or poultry facility is located shall not permit closure under less stringent requirements than those imposed by the department. (6) As used in this section:39-104A HEALTH AND SAFETY 102

(a) "Animal unit" means a unit equaling two and one-half (2.5) swine, each weighing over twenty-five (25) kilograms (approximately fifty-five (55) pounds>, or ten (10) weaned swine, each weighing under twenty-five (25) kilograms, or one hundred (100) poultry. 'Ibtal animal units are calculated by adding the number ofswine weighing over twenty-five (25) kilograms multiplied byfour-tenths (.4) plus the numberofweaned swine weighing under twenty-five (25) kilograms multiplied by one-tenth (.1) plus the number ofpoultry multiplied by one one-hundredth (.01). (b) "Facilities" or "facility" means a place, site or location or part thereof where swine or poultry are kept, handled, housed or otherwise maintained and includes, but is not limited to, buildings, lots, pens and animal waste managementsystems, andwhichhas a one-time animal unitcapacityoftwo thousand (2,000) or more animal units. (c) "Large swine and poultry feeding operations" means swine facilities and poultry facilities having a one-time animal unit capacity of two thousand (2,000) or more animal units. (d) "One-time animal unit capacity" means the maximum number of animal units that a facility is capable ofhousing at any given time. [I.C., § 39-104A, as added by 1999, ch. 263, § 1, p. 669; am. 2000, ch. 132, § 7, p. 

### 1; am. 2000,ch. 221,§ 1,p. 614; am. 2001,ch. 103, § 14,p. 253; am. 2001, ch. 350, § 1, p. 1228.J

Compiler's notes. This section was amended by two 2000 acts

- ch. 132, § 7, effective July 1, 2000 and ch. 221, § 1 effec· tiveApril 12, 2000, which do not conflict and have been compiled together.

The 2000 amendmentby ch. 132, § 7, near the middle ofthe last sentence in subsection (1). deleted "ofhealth and welfare, division" preceding "of environmental quality"; and

near the beginning of the first sentence in subsection (2), substituted "environmental quality" for "health and welfare".

The 2000 amendment by ch. 221, § 1, added "- Financial Assurances" to the catcWine; near the beginning ofthe second sentence in subsection (1), deleted "'department ofhealth and welfare," preceding "division of environmental quality", deleted the

comma preceding "is in the best position";

near the beginning of the first sentence in subsection (2), substituted "division ofenvironmental quality" for "department ofhealth and welfare", at the end of the sentence, substituted "division" for "'department", atthe beginning of the last sentence, substituted "division" for "'department"; and added subsections (3) through (5).

This sectionwas amended by two 2001 acts which appear to be compatible and have been compiled together.

The 2001 amendment by ch. 103 § 14, substituted "department" for "'division" throughout the section.

The 2001 amendment by ch. 350, § 1, substituted "department" for "division" throughout the section; added subsections (4) and (5); and redesignated former subsection (5) as present subsection (6).

Former section 39-104a which comprised S.L. 1973, ch. 87, § 2, was repealed by S.L. 1974, ch. 23, § 1.

The bracketed word "department", appeEU'- ing throughout subsections (1) through (4),

was inserted by the compiler.

Section 13 ofS.L. 2001, ch. 103 is compiled

as Chapter 1 ofTitle 39.

Section 15 ofS.L. 2001, ch. 103 is compiled

as § 39-171.

Section 2 ofS.L. 2001, ch. 350 is compiled

as § 39-7907.

Section 2 ofS.L. 1999, ch. 263 declared an emergency. Approved March 24, 1999.

Section 2 ofS.L. 2000, ch. 221 declared an emergency. Approved April 12, 2000.

Section 3 ofS.L. 2001, ch. 350 declared an emergency. Approved April 9, 2001.

Section 39 of S.L. 2000, ch. 132 provides: <I(1) This actshall be in full force and effecton and after July I, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality103 ENVIRONMENTAL QUALITY

- HEALTH 39-105

without further republication Of promulga· tioD, to comply with the provisions ofthis act. Until such time as a republication of a rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the De· partment ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in § 39-7911.

39·104b. [Amended and Redesignated.]

Compiler's notes. This section, which comprised S.L. 1973, ch. 87, § 3, p. 137, was amended and redesignated as § 39·104.

39·104c. Transfer of powers to administrator of department of environmental and community services. [Repealed.]

Compiler's notes. This section, which comprised S.L. 1973, ch. 87, § 4, p. 137, was repealed hy S.L. 1974, ch. 23, § 1.

39·105. Powers andduties ofthe director.

- The directorshallhave the following powers and duties:

(1) All ofthe rights, powers and duties regarding environmental protection functions vested in the department of health and welfare, and its director, administered by the division ofenvironmental quality, including, butnotlimited to, those provided by chapters 1, 4, 30, 36, 44, 58, 62, 64, 65, 66,70, 71, 72 and 74, title 39, Idaho Code. The director shall have all such powers and duties as described in this section as may have been or could have been exercisedbyhis predecessors in law, and shall be the successorin law to all contractual obligations entered into by predecessors in law. All hearings ofthe director shall be governed by the provisions ofchapter 52, title 67, Idaho Code.

(2) The director shall, pursuantand subjectto the provisions ofthe Idaho Code, and the provisions ofthis act, formulate andrecommend to the board, rules as may be necessary to deal with problems related to water pollution, air pollution, solid waste disposal, and licensure and certification requirements pertinent thereto, which shall, upon adoption by the board, have the force ofthe law relating to anypurpose whichmay be necessaryand feasible for enforcing the provisions of this act, including, but not limited to, the prevention, control orabatementofenvironmental pollution or degradation including radionuclides and risks to public health related to any of the powers and duties describedin this section.Any suchrule may be ofgeneral application throughout the state or may be limited as to times, places, circumstances or conditions in order to make due allowance for variations therein.

(3) The director, under the rules adopted by the board, shall have the general supervision ofthe promotion and protection ofthe environment of this state. The powers and duties ofthe director shall include, but not be limited to, the following:

(a) The issuance oflicenses and permits as prescribed by law and by the rules ofthe board promulgatedhereunder. For each air quality operating permitissued undertitle Vofthe federal clean air act and its implementingregulations, the director shall, consistentwith the federal clean air act39-105 HEALTH AND SAFETY 104

and its implementing regulations, expressly include a provision stating that compliance with the conditions of the permit shall be deemed compliance with the applicable requirements ofthe federal clean air act and the title V implementing regulations. The director may develop and issue general permits covering numerous similar sources, as authorized by 40 CFR 70.6(d) as may be amended, and as appropriate. (b) The enforcement of rules relating to public water supplies and to administer the drinking water loan fund pursuantto chapter 76, title 39, Idaho Code, including making loans to eligible public drinking water systems as defined in the federal safe drinking water act as amended, and
to comply with all requirements ofthe act, 42 U.S.C. 300f, et seq. and regulations promulgated pursuant to the act. This includes, but is not limited to, the adoption and implementation ofan operator certification program; the development ofand implementation ofa capacity development strategyto ensure public drinking watersystems have the technical, managerial and financial capability to comply with the national primary drinking water regulations; and the enhancement ofprotection ofsource waters for public drinking water systems. (c) The establishment ofliaison with other governmental departments, agencies and boards in order to effectively assist other governmental entities with the planning for the control of or abatement ofenvironmental pollution. All ofthe rules adopted by the board hereunder shall apply
to state institutions. (d) The supervision and administration of a system to safeguard air quality and for limiting and controlling the emission ofair contaminants. (e) The supervision and administration of a system to safeguard the quality of the waters of this state including, but not limited to, the enforcement ofrules relating to the discharge ofeffluent into the waters of this state and the storage, handling and transportation of solids, liquids, and gases which may cause or contribute to water pollution. For purposes ofcomplying with the clean water act, the directormay provide

an exemption from additional reductions for those nonpoint sources that
meetthe applicable reductions set forth in an approved TMDL as defined in chapter 36, title 39, Idaho Code. 

## m The supervision and administration of administrative units whose responsibility shall be to assist and encourage counties, cities, other governmental units, and industries in the control ofandlor abatement of environmental pollution. (g) The administration ofsolid waste disposal site and design review in accordance with the provisions ofchapter 74, title 39, Idaho Code, and chapter 4, title 39, Idaho Code, and in particular as follows: (i) The issuance ofa solid waste disposal site certificate in the manner provided in chapter 74, title 39, Idaho Code. (ii) Provide review and approval regarding the design of solid waste disposal facilities and ground water monitoring systems and approval ofall applications for fiexible standards as provided in 40 CFR 258, in accordance with the provisions ofchapter 74, title 39, Idaho Code.105 Ej\,'VIRONMENTAL QUALITY

- HEALTH 39-105

liii) Cooperating and coordinating with operational monitoring ofsolid
waste disposal sites by district health departments pursuant to authority established in chapters 4 and 74, title 39, Idaho Code. (iv) The authority granted to the director pursuant to provisions ofthis subsection shall be effective upon enactment of chapter 74, title 39, Idaho Code, by the legislature. (v) The authority to develop and propose rules as necessary to supplement details of compliance with the solid waste facilities act and applicable federal regulations, provided that such regulations shall not conflict with the provisions of this act nor shall such regulations be

more strict than the requirements established in federal law or in the solid waste facilities act. ih) The enforcement ofall laws, rules, regulations, codes and standards relating to environmental protection and health. Ii) The adoption and implementation of a public wastewater operator certification program to ensure the operators ofpublic wastewater treatment facilities have the technical expertise and certification to comply with federal regulations and state rules dealing with wastewater; and the enhancement and protection of source waters of the state pursuant to rules ofthe board. (4) The director, when so designated by the governor, shall have the
power to apply for, receive on behalfofthe state, and utilize any federal aid, grants, gifts, gratuities, or moneys made available through the federal governmentincluding, but not limited 

### to. the federal water pollution control act, for use in or by the state ofIdaho in relation to health and environmental protection. 15> The director shall have the power to enter into and make contracts and agreements with any public agencies or municipal corporation for facilities, land, and equipment when such use will have a beneficial or recreational effect or be in the best interest in carrying out the duties imposed upon the department.

The director shall also have the power to enter into contracts for the expenditure ofstate matching funds for local purposes. This subsection will constitute the authority for public agencies or municipal corporations to
enter into such contracts and expend money for the purposes delineated in such contracts. (6) The director is authorized to adopt an official seal to be used on appropriate occasions, in connection with the functions ofthe department or the board, and such seal shall be judicially noticed. Copies of any books, records, papers and other documents in the department shall be admitted in evidence equally with the originals thereofwhen authenticated under such seal. [1972, ch. 347, § 5. p. 1017; am. 1974, ch. 23, § 49, p. 633; am. 1980, ch. 325, § 1. p. 820; am. 1988, ch. 47. § 2, p. 54; am. 1989, ch. 308, § 3, p. 762; am. 1991, ch. 332, § 2, p. 859; am. 1992. ch. 307, § 1. p. 915; am. 1992, ch. 331. § 2, p. 972; am. 1993, ch. 139, § 22, p. 342; am. 1993, ch. 275, § 4.
p. 926; am. 1994, ch. 75, § 1, p. 156; am. 1997, ch. 26, § 1, p. 36; am. 1999, ch. 174, § 1, p. 467; am. 2000, ch. 132, § 8, p. 309.)39-105 HEALTH AND SAFETY 106

Legislative Intent. Section 1 ofS.L. 1989, ch. 308 read: "0) The legislature ofthe state ofIdaho finds:

"(8) Waterborne nutrients. including phosphorus and nitrogen, provide nourishment for aquatic plants and fish.

"(b) Nutrient enrichment or overloading

can result in overfeeding aquatic plant life, and a subsequent increase in the growth of algae.

"(e) Nitrogen, phosphorus and the other nutrient elements are naturally occurring elements that exist in all living things and are essential to all life.

"(d! Nutrients enter the water through rainfall, land runoff, decomposition ofplants and animals, and other nonpoint sources as well as from point sources, including discharges from industrial operations and**sew~** age treatment facilities.

"(e) Effective nutrient management requires an understanding of a complicated array oftechnical factors, including nutrient
sources, nutrient removal and use and the ability ofa water body to clean itself.

"(f) State and federal agencies are currently conducting comprehensive technical analyses to determine the magnitude of nutrient enrichment in certain bodies of water in the state ofIdaho and to recommend methods to resolve potential nutrient overloading.

"(g) A comprehensive statewide nutrient management plan offers a mechanism to facilitate collection and coordination of the information for a strong technical base to define methods to protect the rivers and lakes ofthe state ofIdaho from nutrient overloading.

"(2) Therefore, it 1S hereby declared that the purposes ofthis act are:

"(a) To establish a comprehensive statewide nutrient management plan.

"(b) To develop the plan on a hydrologic basin unit basis with a lake system emphasis.

"(c) To affirm primary responsibility for nutrient management to the state to assure a consistent and effective program throughout the state.

"(d) To clearly express the legislature's**in~** tent that comprehensive basin planning is necessary to optimize management actions designed to achieve the desired water quality benefits."

Section 1 ofS.L. 1991, ch. 332 read: "(1) The legislature of the state of Idaho finds:" "(a) Thatthe waters ofPriest lake are threatened with deterioration that may endanger that natural beauty, wildlife and fisheries value, recreational use and economic potential ofPriest lake." "(b) That preservation and protection of Priest lake and maintenance ofthe usc and enjoyment ofthe lake is in the best interest of all citizens ofthe state." "(c) Recreational use ofPriest lake is an im· portant element ofthe northern Idaho economy." "(d) Increasing demands upon the lake require coordinated state and local action to maintain the existing water quality of the lake." "(21 Therefore, it is hereby declared that the purposes ofthis act are:" "(al To establish a lake water quality management plan for Priest lake to maintain existing water quality in lieu ofan outstanding resource water designation." "(b) To establish that the department of health and welfare is responsible for protect· ing the current water quality of Priest lake during the management plan development period." "(c) To provide that the final plan will be approved by the board ofhealth and welfare and thereafter submitted to the legislature."

Compiler's notes. Section 3 ofS.L. 1988, ch. 39 read: "The Director ofthe Department of Health and Welfare shall be granted authority to appoint a Computer System Manager, who shall be exempt from the provisions ofChapter 53, Title 67, Idaho Code."

Section 1 ofS.L. 1996, ch. 323 read: "Pursuantto the requirements ofsubsection 3.p. of Section 39-105, Idaho Code, the Priest Lake Management Plan, adopted in November, 1995, and amended February 16, 1996, be, and the same is hereby approved. The Legislature of the State of Idaho, state agencies and political subdivisions shall take appropriate actions to implement the plan. The Director ofthe Department ofHealth and Welfare shall, in cooperation with other state agencies, political subdivisions and the Priest Lake PlanningTeam, ensure consistency with the Priest Lake Management Plan and Chapter 36. Title 39. Idaho Code. so that the plan and its implementation are in concert with the provisions ofChapter 36, Title 39, Idaho Code."

The Federal Water Pollution Control Act. referred to in this section, may be found in 33 U.s.C., § 1251 et seq.

Title V of the Federal Clean Air Act,**re~** ferred to in this section. is compiled as 42 U.S.C. § 7661 et seq.

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

# *39-103.

Section 2 ofS.L. 1980, ch. 325 is compiled

as § 39-107.

Sections 1 and 3 of S.L. 1988, ch. 47 are compiled as §* 67·2901 and 37-2744. respectively.

Section 2 ofS.L. 1989, ch. 308 is compiled

as § 39-103.

Sections 1 and 3 of S.L. 1992, ch. 331 are compiled as

# ** 39-7401- 39-7420 and § 39- 414, respectively.

Sections 21 and 23 ofS.L. 1993, ch. 139 are107 ENVIRONMENTAL QUALITY

- HEALTH 39-106

compiled as §§**39~7420** and**39~414,** respectively.

Sections 3 and 5 of8.L. 1993, ch. 275 are compiled as §§ 39-Il8D and 39-108, respectively.

Section 2 of8.L. 1994, ch. 75 is compiled as § 39-7402.

Section 2 of8.L. 1997. ch. 26 is compiled as §§ 39-7601

- 39-7605.

Section 24 ofS.L. 1993,ch. 139 read: "!fany section, subsection, sentence, clauseorphrase ofthis act is for any reason held to be unconstitutional, such decision shall not affect the validity ofthe remainingportions ofthis act."

Section 4 ofS.L. 1989, ch. 308 declared an emergency. ApprovedApril 3, 1989.

Section 4 ofS.L. 1992, ch. 331 declared an emergency. It became law without the governor's signatureApril 15, 1992.

Section 25 of8.L. 1993, ch. 139 declared an emergency. Approved March 25, 1993.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshallbein full force and effecton and after July 1, 2000, except that the**Divi~** sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethe physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the**De~** partment ofEnvironmental Quality,"

Cross ref. Children's trust account board, voting member, §**39~6001.**

Children's trust account, management and accounting ofmoneys of, § 39-6008.

Sec. to sec. ref. This section is referred to in §§ 39-414,39-7401.

Cited in: State ex reI. Andrus v. Click, 97 Idaho 791, 554 P.2d 969 (1976).

39·106. Director-Additional powers and duties

- Transferand continuation ofrules and other proceedings.

- (l) The director shall exercise the following powers and duties in addition to all otherpowers and duties inherent in the position:

(a) Prescribe such policies and procedures as may be necessary for the administration ofthe department, the conduct and duties ofthe employees, the orderly and efficient management ofdepartment business, and the custody, use and preservation ofdepartment records, papers, books and property belonging to the state. (b) Employ such personnel as may be deemed necessary, prescribe their duties and fix their compensation within the limits provided by the state personnel system law. (c) Administer oaths for all purposes required in the. discharge ofhis duties. (d) Prescribe the qualifications ofall personnel ofthe department on a nonpartisan merit basis, in accordance with the Idaho personnel system law, provided, however, that the administrators in charge ofany division ofthe department shall serve at the pleasure ofthe director. (e) Create such units, sections and subdivisions as are or may be necessary for the proper and efficient functioning ofthe department [I]. (2) [11 All books, records, papers, documents, property, real and personal, unexpended appropriations and pending business in any way pertaining to the rights, powers and duties regarding environmentalprotection functions vested in the department ofhealth and welfare and its director, administered by the division ofenvironmental quality, are transferred to and vested in the department and its director. The department established by this act is empowered to acquire, by purchase or exchange, any property which in thejudgment ofthe departmentis needful for the operation ofthe facilities and programs for which it is responsible and to dispose of, by sale or39-107 HEALTHAND SAFETY 108

exchange, any property which in the judgment of the department is not needful for the operation ofthe same.

(3) All rules, standards, plans, licenses, permits, consent orders, compliance schedules, certification, and other agreements pertaining to environmental protection functions administered by the division ofenvironmental quality heretofore adopted or issued by the 

### [lJ department ofhealth and welfare and its director are transferred to the departmentofenvironmental quality and shallremain in full force and effectuntil superseded. The terms "department" and "director" in such documents shall mean the department of environmental quality and its director, until such documents are amended.

(4) The departmentofenvironmental quality and its director shallbe the

successor to all rights, powers and duties ofthe department ofhealth and welfare and its director regarding all rulemaking proceedings, administrative proceedings, contested cases, civil actions, contracts, delegations, authorizations and other matters pertaining to environmental protection functions. [1972, ch. 347, § 6, p. 1017; am. 1974, ch. 23, § 50, p. 633; am. 1987,ch.223,§ 2, p. 475; am. 1990,ch.56,§ 2,p. 127; am. 2000, ch. 59, § 1, p. J; am. 2000, ch. 132, § 9, p. 309.J

Compiler's notes. This section was amended by two 2000 acts

- ch. 59, § 1 and cb. 132, § 9, botheffectiveJnly 1, 2000, which do not conflict and have been compiled**to~** gether.

The 2000 amendmentby ch. 59, § 1**substi~** tuted "laws" for "Laws" throughout the section; in subdivision la, deleted "and regulations" following "such rules"; and in subdivision ld, deleted "the state veterans homes," following "administrators in charge of".

The 2000 amendment by ch. 132, § 9 rewrote this section as it appears in the bound volume.

The bracketed letters in subdivision (l)(e) and subsections (2) and (3) were inserted by the compiler.

The word "'not'" in the second sentence of subsection 3. has been placed in parentheses by the compiler as surplusage. The word did not appear in subsection 3. when subsection 3. was added by the 1974 amendment ofthe section (S.L.1974, ch. 23, § 50), norwhen the section was amended in 1987 (S.L. 1987, ch. 223, § 2). However, in the amendment ofthe section by § 2 ofS.L. 1990, ch. 56, the word appeared in the sentence but was not**under~** scored as an amendment to the section.

For words "'this act," see Compiler's notes, § 39-101. Section 1 ofS.L. 1987, ch. 223 is compiled

as § 20-546.

Sections 1 and 3 of S.L. 1990, ch. 56 are compiled as §§**36~401** and**65~201,** respectively.

Section 2 ofS.L. 2000, ch. 59, is compiled as § 65-201.

Section 39 of S.L. 2000, ch. 132 provides: "'(1) This actshall beinfull force andeffecton and after July 1, 2000, except that the**Divi~** sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete thephysical transitionto the new department.

"'(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall**redesig~** nate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or**promulga~** tion, to complywith the provisions ofthis act. Until such time as a republication ofa rule occ}1rs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

Cited in: Salinas v. Amalgamated Sugar Co., 341 F. Supp. 311 (D. Idaho 1972).

39·107. Board

- Composition

- Officers

- Compensation Powers

- Subpoena

- Depositions

- Review

- Rules.

- (l)(a) The board ofenvironmental quality shall consistofseven (7) members who shall be appointedbythe governor, with the advice and consentofthe senate. The109 ENVIRONMENTAL QUALITY

- HEALTH 39-107

members shall serve at the pleasure ofthe governor. Each member ofthe board shall be a citizen ofthe United States, aresidentofthe state ofIdaho, and a qualified elector, and shall be appointed to assure appropriate geographic representation of the state of Idaho. Not more than four (4) members of the board shall be from anyone (1) political party. Two (2) members ofthe board shall be chosen with due regard to their knowledge and interest in solid waste; two (2) members shall be chosen for their knowledge ofandinterestin airquality; two (2) members shall be chosen for theirknowledge ofand interest in water quality; and one (1) member shall be chosenwithdueregardforhisknowledge ofandinterestin air, waterand solid waste issues.

(b) Themembers oftheboardofenvironmental quality shallbe appointed for a term offour (4) years. In appointing members whose terms begin in 2000, the governor shall designate three (3) members to be appointed for

a term ofthree (3) years, two (2) members appointed for a term offour (4) years, and two (2) members appointed for a term of two (2) years. Successors 

### to the members appointedfor a term ofless than four (4) years shall be appointed for a term offour (4) years thereafter. (2) The board annually shall elect a chairman, a vice chairman, and a secretary, and shall hold such meetings as may be necessary for the orderly conductofits business, and suchmeetings shall beheldfrom time to time on seventy-two (72) hours'notice ofthe chairman ora majorityofthe members. Five (5) members shall be necessary to constitute a quorum at any regular

or special meeting and the action ofthe majority ofmembers present shall be the action ofthe board. The members ofthe board shall be compensated

as provided in section 59-509(h), Idaho Code.

(3) The board, in furtherance ofits duties under this act and under its rules, shall have the power to administer oaths, certify to official acts, and
to issue subpoenas for the attendance ofwitnesses and the production of papers, books, accounts, documents and testimony. The board may, if a witness refuses to attend or testify, or to produce any papers required by such subpoenas, report to the district court in and for the county in which theproceedingis pending, by petition, settingforth thatdue notice has been givenofthetimeandplaceofattendanceofsaidwitnesses, ortheproduction ofsaidpapers, that the witness has been properly summoned, and that the witness has failed and refused to attend or produce the papers required by this subpoena before the board, or has refused to answer questions propounded to him in the course ofsaid proceedings, and ask an order ofsaid
court compelling the witness to attend and testify and produce said papers before the board. The court, upon the petition ofthe board, shall enter an orderdirecting the witness to appearbefore the court at a time and place to be fixedbythecourtin suchorder, the time to be notmore than ten (10) days from the date ofthe order, and then and there shall show cause why he has
not attended and testified or produced said papers before the board. Acopy ofsaidordershallbe servedupon saidwitness. Ifit shall appearto the court that said subpoenawas regularly issuedby the board and regularly served, the court shall thereupon orderthat saidwitness appear before the board at the time and place fixed in said order, and testify or produce the required39-107 HEALTH AND SAFETY 110

papers. Upon failure to obey said order, said witness shall be dealt with for contempt ofcourt. (4) The director, his designee, or any party to the action may, in an investigation or hearing before the board, cause the deposition or interrogatoryofwitnesses orpartiesresidingwithin orwithoutthe state, tobe taken in the manner prescribed by law for like depositions and interrogatories in civil actionsinthe districtcourtofthis state, andtothatendmaycompelthe attendance ofsaid witnesses and production ofbooks, documents, papers and accounts. (5) Anyperson aggrievedby an action orinaction ofthe department shall be afforded an opportunity for a fair hearing upon request therefor in writing pursuant to chapter 52, title 67, Idaho Code, and the rules promulgated thereunder. In those cases where the board has been granted the authority to hold such a hearing pursuant to a provision ofthe Idaho Code, the hearing may be conducted by the board at a regular or special meeting, or the board may designate hearing officers, who shall have the power and authority to conduct hearings in the name ofthe board at any time and place. In any hearing, a member ofthe board or hearing officer designated by it, shall have the power to administer oaths, examine witnesses, and issue in the name of the board subpoenas requiring the testimony of witnesses and the production of evidence relevant to any matter in the hearing. (6) Any person adversely affected by a final determination ofthe board, may securejudicialreviewbyfiling a petitionforreview as prescribedunder the provisions ofchapter 52, title 67, Idaho Code. The petition for review shall be served upon the chairman of the board, the director of the department, and upon the attorney general of the state of Idaho. Such service shall bejurisdictional and the provisions ofthis section shall be the exclusive procedure for appeal. (7) The board, by the affirmative vote of four (4) ofits members, may adopt, amend or repeal the rules, codes, and standards ofthe department, that are necessary and feasible in order to carry out the purposes and provisions ofthis act and to enforce the laws ofthis state. The rules and orders so adopted and established shall have the force and effect oflaw and may deal with any matters deemed necessary and feasible for protecting the environment ofthe state. (8) All rulemaking proceedings and hearings of the board shall be governed by the provisions ofchapter 52, title 67, Idaho Code. (9) The board shall adopt contested case rules that are consistent with the rules adopted by the attorney general under section 67-5206(4), Idaho Code, the provisions of this act and other statutory authority of the department. (10) All rules, permits and other actions heretofore adopted, issued or taken by the board ofhealth and welfare pertaining to the environmental protection functions administered by the division ofenvironmental quality shall remain in full force and effect until superseded. (11) The board of environmental quality shall be the successor to all rights, powers and duties ofthe board ofhealth and welfare regarding all

### 111 ENVIRONMENTAL QUALITY

- HEALTH 39-107A

rulemaking proceedings, administrative proceedings, contested cases, civil actions, contracts, delegations, authority and other matters pertaining to environmentalprotection functions administered by the division ofenvironmental quality.

(12) Upon creation of the board of environmental quality, all pending business before the board ofhealth and welfare relating to environmental protection functions administered by the division ofenvironmental quality shall be transferred to and determined by the board of environmental**qualit~** [1972,ch.347,§ 7,p. 1017; am. 1974,ch.23,§ 51,p.633;am.1978, ch.45,§ 2,p.80;am. 1980,ch.34,§ l,p. 57; am. 1980,ch.247,§ 32,p.582;

am. 1980, ch. 325,§ 2,p. 820; am. 1981, ch. 122,§ l,p. 208; am. 1993,ch. 216, § 23, p. 587; am. 2000, ch. 132, § 10, p. 309.]

Compiler'snotes. Forwords "thisact,"see Compiler's notes, § 39-103.

Section 1 of8.L. 1978, ch. 45 is compiled as § 39-103.

Sections 31 and 33 or8.L. 1980, ch. 247 are compiled as §§ 38·1205 and 39-412, respectively.

Sections 1 and 3 of8.L. 1980, ch. 325 are compiled as §§ 39-105 and 39-1210, respectively.

Sections 22 and 24 of8.L. 1993, ch. 216 are compiled as §§ 38·1306 and 39-605, respectively.

Section 11 ofS.L. 1980, ch. 325 declared an emergency. Approved April 2, 1980.

Section 17 of 8.L. 1972, ch. 347 provided this actshalltake effectfrom and afterJuly I, 1972.

Section 39 of 8.L. 2000, ch. 132 provides: "(1) This actshallbein full force and effecton and after July 1, 2000, except that the**Divi~** sian ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethe physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall**redesig~** nate all references to the Division of**Environ~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or**promulga~** tion, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the**De~** partment ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in §§ 39-116,39-417,57-1701.

39-107A. 

### Real property in Bunker Hill clean\lp site.

- Notwithstanding any other provision oflaw to the contrary, the department may accept transfer from the United States ofany real property or interest in real property acquired by the United States for remediation purposes concerning the Bunker Hill Superfund Site pursuant to 42 U.S.C. section 9604(j). The state of Idaho shall incur no liability nor be subject to any claims related to the existence, release or threatened release of any hazardous substance or contaminantorpollutant on, orfrom, any suchreal property. The department may, in its sole discretion, manage, lease or dispose ofsuchpropertyforthe purpose offacilitating appropriate operation and maintenance activities, encouraging economic development of the Silver Valley or assisting local governmental entities. The management, lease or disposal ofsuch property shall not be subject to chapter 3, title 58, Idaho Code. Any receipts from the management, lease or disposal ofsuch property shall be deposited in the Bunker Hill Cleanup Trust Fund established by the Trust Fund Declaration ofthe state ofIdaho dated May 2,1994 (AttachmentM, ConsentDecree, United States of Americav. Asarco, Inc. No. CV-94-0206-N-HLR (D. Idaho)) for the purpose offunding institutional control or operation and maintenance activities regarding the site.39-107B HEALTH AND SAFETY 112

[I.C., § (39-107A) 39-107a, as addedby 1996, ch. 205, § 1, p. 629; am. 2000, ch. 21, § 1, p.l; am. 2000, ch. 132, § 11, p. 309.J

Compiler's notes. This section was amended by two 2000 acts

- ch. 21, § 1, effective March 3, 2000 and ch. 132, § 11, effective July 1, 2000, which do not conflict and have been compiled together.

The 2000 amendmentby ch. 21, § 1, in the present third sentence, substituted "The department" for "Any such real property which has a public use or commercial value and which is not useful or usable by the department", added "may, in its sole discretion, manage, lease or dispose ofsuch property for the purpose offacilitating appropriate operation and maintenance activities, encouraging economic development ofthe SilverValley or assisting local govemmental entities!'; in the present fourth sentence, added "The**manage~** ment, lease or disposal of such property", inserted "not" preceding "be subject to", substituted "chapter 3, title 58" for "sections 58-331 through 58-335', deleted", except that any" following "Idaho Code"; in the last sentence, added "Any" preceding "receipts from", inserted "management, lease or" preceding "disposal of such property", and substituted "Attachment M" for "AttachmentN".

The 2000 amendment by ch. 132, § 11 de· leted "of health and welfare" following "the department" in two places.

Former § 39-107a, which comprised S.L. 1973, ch. 87, § 5, was repealed by S.L. 1974. ch. 23, § 1.

.

Section 2 ofS.L. 2000, ch. 21 declared an emergency. Approved March 3, 2000,

Section 39 of S.L. 2000, ch, 132 provides: "(1) This actshall bein full force andeffecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethephysical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, 1daho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or**promulga~** tion, to complywith the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to theDivision ofEnvironmental Quality shall mean the**De~** partment ofEnvironmental Quality,"

39.107B. Department ofenvironmental quality fund.

- (1) There isherebycreated a fundin the state treasurytobeknown as thedepartment ofenvironmental quality fund and all moneys deposited therein shall be available to be appropriated to the departmentofenvironmental qualityfor
purposes for which the department was established. (2) All federal grants, fees for services, permitting fees, other program income and transfers from other funds subject to administration by the director ofthe department ofenvironmental quality shall be placed in the fund provided that the statewide accounting and reporting system must provide for identification ofthe balance ofeach funding source within the fund. (3) The state controller shall make transfers to the fund from the general fund and any otherfunds appropriated to the department ofenvironmental quality as requested by the director ofthe department and approved by the board of examiners. [I.C., § 39-107B, as added by 2000, ch. 132, § 12, p. 309.]

Compiler's notes. Former § 39·107b, which comprised S.L, 1973, ch. 87, § 11, was repealed by S.L. 1974, ch. 23. § 1.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshallbein full force andeffecton and after July 1, 2000, except that the**Divi~** sian ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethe physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Ad· ministrative Rules Coordinator shall**redesig~** nate all references to the Division ofEnviron· mental Quality which appear in the master rule database maintained by the coordinator,113 ENVIRONMENTAL QUALITY

- HEALTH 39-107D

to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39·107C. Environmental protection trust fund established.

- The director of the department of environmental quality may receive on behalfofthe department any moneys or real or personal property donated, bequeathed, devised or conditionally granted to the department. Moneys received directly or derived from the sale ofsuchproperty shall be deposited by the state treasurer in a special fund to be known as the environmental protection trust fund which is hereby established, reserved, set aside, appropriated and made available until expended and used and administered to carry outthe terms and conditions ofsuch donation, bequest, devise

or grant. Pending such expenditure or use, surplus moneys in the environmental protection trust fund shall be invested by the state treasurer in the

manner provided for idle state moneys in the state treasury by section 67-1210, Idaho Code. Interestreceived on all suchinvestments shall be paid into the environmental protection trust fund. [I.C., § 39-107C, as added by 2000, ch. 132, § 13, p. 309.J

Compiler's notes. Section 14 ofS.L. 2000, ch. 132, is compiled as § 39-3628.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall be in full force and effect on and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52. Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division**ofEnviron~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-107D. Rules of department or board.

- (1) The legislature directs that anyrule formulated and recommendedby the departmentto the board which is broader in scope or more stringent than federal law or regulations, or proposes to regulate an activity not regulated by the federal government, is subject to the following additional requirements: the notice ofproposed rulemaking and rulemakingrecord requirements under chapter 52, title 67, Idaho Code, must clearly specify that the proposed rule, or portions ofthe proposed rule, are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government, and delineate which portions ofthe proposed rule are broader in scope or more stringent than federal law or regulations, or regulate an activity not regulated by the federal government. (2) Any rule promulgated or adopted by the board which is broader in scope or more stringent than federal law or regulations, or which regulates

an activity not regulated by the federal government, submitted to the standing committee of the legislature pursuant to section 67-5291, Idaho Code, shall include a notice by the board identifying the portions of the adopted rule that are broaderin scope or more stringentthan federal law or rules, orwhich regulate an activity notregulated bythe federal government.39-108 HEALTH AND SAFETY 114

(3) Nothing provided herein is intended to alter the scope or effect of sections 39-105(3)(g) (v), 39-118B, 39-3601, 39-4404, 39-6205, 39-7210 and 39-7404, Idaho Code, or any other provision of state law which limits or prohibits agency action or rulemaking that is broader in scope or more stringent than federal law or regulations. [I.C., § 39-107D, as added by 2002, ch. 144, § 1, p. 405.]

39-108. Investigation

- Inspection

- Right ofentry

- Violation

- Enforcement

- Penalty

- Injunctions.

- (1) The director shall

cause investigations to be made upon receipt ofinformation concerning an alleged violation of this act or of any rule, permit or order promulgated thereunder, and may cause to be made such other investigations as the director shall deem advisable. (2) For the purpose ofenforcing any provision ofthis chapter or any rule authorized in this chapter, the director orthe director's designee shall have the authority to:

(a) Conduct a program of continuing surveillance and of regular or periodic inspection of actual or potential environmental hazards, air contamination sources, water pollution sources, and of solid waste disposal sites; Cb) Enter at all reasonable times upon any private or public property, upon presentation ofappropriate credentials, for the purpose ofinspecting or investigating to ascertain possible violations ofthis act or ofrules, permits or orders adopted and promulgated by the director or the board; (c) All inspections and investigations conducted under the authority of this chapter shall be performed in conformity with the prohibitions against unreasonable searches and seizures contained in the fourth amendmentto the constitution ofthe UnitedStates andsection 17, article I, ofthe constitution ofthe state ofIdaho. The state shall not, under the authoritygrantedby this chapter, conductwarrantless searches ofprivate property in the absence of either consent from the property owner or occupier or exigent circumstances such as a public health or environmental emergency; Cd) Any district courtin and for the county in which the subjectproperty is located is authorized to issue a search warrant to the director upon a showing of(i) probable cause to suspecta violation, or (ii) the existence of

a reasonable program ofinspection. Any search warrantissued underthe authority ofthis chapter shall be limitedin scope to the specific purposes for which it is issued and shall state with specificity the manner and the scope ofthe search authorized. (3) Whenever the director determines that any person is in violation of any provision ofthis act or any rule, permit or orderissued or promulgated pursuant to this act, the director may commence either ofthe following: (a) Administrative EnforcementAction.

(i) 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 ofthe act, rule, regulation, permit or order which has been115 ENVIRONMENTAL QUALITY

- HEALTH 39-108

violated, and shall state the amount ofcivil penalty claimed for each violation. The notice ofviolation shall inform the person to whom it is directed ofan opportunity to confer with the director or the director's designee in a compliance conference concerning the alleged violation. A written response may be required within fifteen (15) days ofreceipt of the notice ofviolation by the person to whom it is directed. 

### (iD Scheduling compliance conference. If a recipient of a notice of violation contacts the departmentwithin fifteen (15) days ofthe receipt ofthe notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days of the date of receipt ofthe notice; unless a later date is agreed upon between the parties. Ifa compliance conference is not requested, the director may proceed with a civil enforcement action as provided in paragraph (b) of this subsection. (iii) Compliance conference. The compliance conference shall provide

an opportunity for the recipient ofa notice ofviolation to explain the circumstances of the alleged violation and, where appropriate, to present a proposal for remedying damage caused by the alleged violation and assuring future compliance. (iv) Consent order. Ifthe recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision providing for payment ofany agreed civil penalty. (v) 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. Ifa party does not comply with the terms ofthe consent order, the director may seek and obtain, in any appropriate district court, specific performance ofthe consent order and such other reliefas authorized in this chapter. (vi) Failure to reach consent order. Ifthe parties cannot reach agreement on a consent order within sixty (60) days after the receipt ofthe notice of violation or if the recipient does not request a compliance conference as per paragraph (a)(ii) of this section, the director may

commence and prosecute a civil enforcement action in district court, in accordance with subsection (b) ofthis section. (b) Civil enforcementaction. The directormayinitiate a civil enforcement action through the attorney general as provided in section 39-109, Idaho Code. Civil enforcementactions shallbe commenced andprosecutedin the districtcourtin and forthe countyinwhich the allegedviolation occurred, and may be brought against any person who is alleged to have violated any provision ofthis act or any rule, permit or order which has become effective pursuant to this act. Such action may be brought to compel compliancewith anyprovision ofthis act orwith anyrule, permitororder promulgated hereunder and for any reliefor remedies authorized in this
act. The director shall not be required to initiate or prosecute an administrative action before initiating a civil enforcement action. (4) No civil or administrative proceeding may be brought to recover for a violation ofany provision ofthis chapterora violation ofanyrule, permitor39-108 HEALTH AND SAFETY 116

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 ofthe violation. (5) Monetary penalties. (a) Any person determined in a civil enforcement action to have violated
any provision of this act or any rule, permit or order promulgated pursuant to this act shall be liable for a civil penalty not to exceed ten thousand dollars ($10,000) perviolation or one thousand dollars ($1,000) for each day of a continuing violation, whichever is greater or ten thousand dollars ($10,000) for each separate air violation and day of continuing air violation. The method ofrecovery ofsaid penalty shall be by a civil enforcement action in the district court in and for the county where the violation occurred. All civil penalties collected under this act shall be paid into the general fund ofthe state. Parties to an administrative enforcement action may agree to a civil penalty as provided in this subsection. (b) The imposition or computation ofmonetary penalties may take into
accountthe seriousness ofthe violation, goodfaith efforts to comply with the law, and an enforceable commitmentby the person againstwhom the penalty is directed to implement a supplemental environmental project. Forpurposes ofthis section, "supplemental environmental project"means

a projectwhichthe person is nototherwiserequired to perform andwhich prevents pollution, reduces the amount ofpollutants reaching the environment, contributes to public awareness ofenvironmental matters, or enhances the quality of the environment. In evaluating a particular supplemental environmentalprojectproposal, preference may be given to those projects with an environmental benefitwhich relate to theviolation

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. (6) In addition to such civil penalties, any person who has been determined to have violated the provisions ofthis act or the rules, permits or orders promulgated thereunder, shall be liable for any expense incurred by the state in enforcing the act, or in enforcing or terminating any nuisance,

source ofenvironmental degradation, cause ofsickness, or health hazard. (7) No action taken pursuant to the provisions ofthis act or ofany other environmental protection law shall relieve any person from any civil action and damages that may exist for injury or damage resulting from any violation of this act or of the rules, permits and orders promulgated thereunder. (8) In addition to, and notwithstanding other provisions ofthis act, in circumstances ofemergency creating conditions ofimminent and substantial dangerto the public health orenvironment, the prosecuting attorney or the attorney generalmayinstitute a civil action for animmediateinjunction
to halt any discharge, emission or otheractivityin violation ofprovisions of this actorrules, permits and orders promulgatedthereunder. In such action the court may issue an ex parte restraining order. [1972, ch. 347, § 8, p. 1017; am. 1974,ch.23,§ 52,p.633;am. 1986,ch.60,§ 2,p. 169; am. 1993,117 ENVIRONMENTAL QUALITY

- HEALTH 39-109

ch. 275,

# *5, p. 926; am. 1997, ch. 94,

# * 2, p. 219; am. 2000, ch. 132, § 16, p.309.J

Compiler's notes. Forwords "this act,"see Compiler\; notes.

# *39·101.

Section 1 of8.1. 1986, ch. 60 is compiled as § 39-101.

Sections 4 and 6 of 8.L. 1993, eh. 275 are compiled as 

## *s 39-105 and 39-115, respectively.

Section 1 ofS.L. 1997, eh. 94 is compiled as § 39-4414.

Section 15 of8.L. 2000, eh. 132, is compiled

as § 39-3630.

Section 39 of 8.L. 2000, eh. 132 provides: "( 1) This act shall be in full force and effecton and after .July 1, 2000. except that the Division ofEnvironmental Quality shall have one (11 year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52. Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in " 39-101, 39-116. 39-419, 39-1606, 39- 6;:)07.39-7420.

Cost". -Any expense. -Award. Limitation on actions. Nuisance claim not preempted.

Costs.
-Any Expense.

The phrase "any expense" in this section

was not intended to include attorney fees. Idaho Dep't ofHealth & Welfare v. Southfork Lumber Co., 123 Idabo 146, 845 P.2d 564 (1993).
-Award,

The legislature has made it clear that an award ofexpenses under the Environmental Protection and Health Act is mandatory and unqualified, stating that a person who violates the act "shall be liable for any expense." By using the term "any expense" rather than "costs", the legislature apparently intended a
more extensive recovery ofcosts than is contemplated by § 12-101 and I.R.C.P. 54(d)( 1J. For this reason, the trial court should con· sider a request for costs according to subsec· tion (6) of this section rather than Rule 54(d)( 1). Idaho Dep't of Health & Welfare v. Southfork Lumber Co., 123 Idaho 146, 845 P.2d 564 (19931.

Limitation on Actions.

Since Idaho's Environmental Protection and Health Act

## (** 39-101 et seq.) does not provide its own statute oflimitation, the fouryear limitation provided by

# *5·224 applies to actions brought under it. Aetna Cas. & Sur. Co. v. GulfResources & Chern. Corp

.. 600 F. Supp. 797 

### m. Idaho 19851.

Nuisance Claim Not Preempted.

The Environmental Protection Act does not preempt common law nuisance claims. Idaho

v. Bunker Hill Co., 635 F. Supp. 665 

### m. Idaho 19861.

39-109, Commencement ofcivil enforcement actions

- Criminal actions authorized

- Duties of attorney general,

- Upon request of the director, it shall be the duty of the attorney general to institute and prosecute civil enforcement actions or injunctive actions as provided in section 39-108, Idaho Code, and to prosecute actions or proceedings for the enforcement of any criminal provisions ofthis chapter. In addition, when deemed by the director to be necessary, the director may retain or employ private counsel. The attorney general may delegate the authority and duty under this section to prosecute criminal actions to the prosecuting attorney ofthe county in which such a criminal action may arise. [I.C., § 39-109, as added by 1986, ch. 60, § 4, p. 169; am. 2000, ch. 132, § 17, p. 309.]

Compiler's notes. Former § 39·109, which comprised S.L. 1972, ch. 347, 

# * 9. p. 1017; am. 1974, ch. 23, 

# *53, p. 633, was repealed by S.L. 1986. ch. 60.

# * 3. Section 39 of S.L. 2000, ch. 132 provides: "(1) This act shall be in full force and effecton and after July 1, 2000, except that the Divi· sian ofEnvironmental Quality shall have one39-110 HEALTHAND SAFETY 118

(1) year thereafter to accomplish necessary changes to completethe physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinatorshall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in § 39-1606.

39·110. Registration of persons engaged in operations or construction where air pollution is a factor

- Reports.

- The director may require the registration ofpersons engaged in operations which may result in air pollution, and of persons causing, permitting or allowing construction of any facility or new equipment capable of emitting air contaminants into the atmosphere, or designed to eliminate or reduce emissions into the atmosphere, and the filing ofreports by them with the department relating to locations, size ofoutlet, height ofoutlet, rate and period ofemission and composition ofeflluent, and such other information

as the director shall prescribe relative to airpollution. [1972, ch. 347, § 10, p. 1017; am. 1986, ch. 60, § 5, p. 169; am. 2000, ch. 132, § 18, p. 309.]

Compiler's notes. Section 39 ofB.L. 2000, ch. 132 provides: "'(1) This act shall be in full force and effect on and after July I, 2000, except that the Division of Environmental Quality shall have one (1) year thereafter to accomplish necessarychanges tocompletethe physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall**redesig~** nate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulga· tion, to complywith the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the De

M partment ofEnvironmental Quality. n

39-111. Availability ofrecords.

- Any records or other information furnished 

### to the board, department or to agents, contractors, or other representatives ofthe departmentunder anyprovisions ofthis chaptershall be subjectto disclosure according to chapter3, title 9, Idaho Code_ [1972, ch. 347, § 11,p. 1017; am. 1974, ch. 23, § 54,p. 633;arn. 1986,ch. 60,§ 6,p. 169;arn. 1990,ch.213,§ 34, p. 480; arn. 1998,ch. 125,§ 2,p. 461; am. 2000, ch. 132, § 19, p. 309.]

Compiler's notes. 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 of the act should take effectJuly 1, 1993 and that §§ 1, 2, 46 and 47 should take effectJuly 1, 1990.

For words "this act" see Compiler's notes, § 39-101.

Sections 53 and 55 ofS.L. 1974, ch. 23 are compiled as §§ 39-109 and 39-114.

Section 7 ofS.L. 1986, ch. 60 is compiled as § 39-116.

Sections 33 and 35 ofS.L. 1990, ch. 213 are compiled as §§ 38-712 and 39-257, respec M tively. Sections 1 and 3 ofS.L. 1998, ch. 125 are compiled as §§ 9M342A and 39-117, respecM tively.

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

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshallbeinfull force andeffecton and after July 1, 2000, except that the Divi· sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to completethephysical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesig-

### 119 ENVIRONMENTAL QUALITY

- HEALTH 

### 39-112

nate all references to the Division of**Environ~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgatioD, to comply with the provisions ofthis act. Until such time as a republication ofa rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."



### 39-112. Emergency

- Order

- Hearing

- Modification, affirmance, or settingaside.

- (1) Any otherprovision oflaw to the contrary notwithstanding, if the director finds that a generalized condition of air pollution exists and thatit creates an imminent and substantial endangerment to the public health or welfare constituting an emergency requiring immediate action to protect human health or safety, the director, with the

concurrence ofthe governor as to the existence ofsuch an emergency shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission ofair contaminants, and such order shall 

### fix a time and place, not later than twenty-four 

### (24) hours thereafter, for a hearing to be held before the director. Not more than twenty-four 

### (24) hours after the commencement ofsuch hearing, and without adjournment thereof, the director shall affirm, modify or set aside**it~** order. (2) In the absence ofa generalized condition ofair pollution ofthe type referred to in subsection (1) of this section, if the director finds that emissions from the operation ofone (1) or more air contaminant sources is causing imminent and substantial danger to human health or safety the director may bring suit through the attorney general in the appropriate districtcourtto immediatelyrestrain any person causing or contributingto the alleged pollution to stop the emission of air pollutants causing or contributing to such pollution. If it is not practicable to assure prompt protection ofpublic health orwelfare orthe environmentbycommencement ofsuchcivil action, the directormayorderthe person orpersons responsible for the operation or operations in question to reduce or discontinue emissions immediately without regard to other provisions ofthis act. In such event, the requirements forhearing and affirmance, modification or setting aside ofan order set forth in subsection (1) ofthis section shall apply. For purposes ofsubsections (1) and (2) ofthis section, imminentand substantial endangerment or danger shall be interpreted no more broadly than these words are interpreted under section 

### 303 ofthe clean air act, 

### 42 USC 7603. (3) Nothing in this section shall be construed to limit any power which the governor or any other officermay have to declare an emergency and act

on the basis ofsuch declaration, ifsuch power is conferred by statute or constitutional provision, or inheres in the office. 

### [1972, ch. 

### 347, § 

### 12, p. 

### 1017; am. 

### 2000, ch.**13~,** § 

### 20, p. 

### 309.]

Compiler'sDotes. Forwords "this act,"see Compiler's notes, § 39-103.

Section. 13 and 14 of S.L. 1972, ch. 347 repealed chapter 29 of title 39 and former chapter 1 oftitle 39, respectively.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshallbein full force and effecton and after July 1, 2000, except that the Divi· sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division**ofEnviron~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulga-39-113 HEALTH AND SAFETY 120

hon, to comply with the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-113. Transfer of employees.

- All employees of the division of environmental quality and the INEEL oversightprogram ofthe department ofhealth and welfare are transferred to the department ofenvironmental quality. Such transfer shall in no manner affect the rights or privileges of any transferred employee under the public employee retirement system (chapter 13, title 59, Idaho Code), thegroup insuranceplan (chapter 12, title 59, Idaho Code), or personnel system (chapter 53, title 67, Idaho Code). Additionally, when the departmentofhealth and welfare is used in terms of environmental protection, it shall mean the department ofenvironmental quality. [1972, ch. 347, § 15, p. 1017; am. 2000, ch. 132,§ 21, p. 309.]

Compiler's notes. Except for §§ 59-1205 and 59-1212, "Chapter 12 of title 59, Idaho Code" referred to in this section has been amended and transferred to §§ 67-5761

- 67-5772 by S.L. 1980, ch. 106, §§ 12-21.

For words "this act," see Compiler's notes, § 39-103.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This act shall bein full force andeffecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department. (2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-114. Administrator, department orboard ofhealth now deemed director, department or board ofhealth and welfare, respectively. [Repealed.]

Compiler's notes. Former § 39-114, by S.L. 2000, ch. 132, § 22, effective July 1, which comprised 1972, ch. 347. § 16, p. 1017; 2000.

am. 1974, ch. 23, § 55, p. 633, was repealed

39-115. Pollution source permits.

- (l)(a) The director shall have the authority to issue pollution source permits in compliance with rules established hereunder.

(b) The director shall develop and recommend to the board for adoption through rulemaking, criteria to determine insignificant activities and such sources or modification with emissions at or below the de minimis level which shall not require either a permit to construct or a permit to operate; provided however, that a registration ofthe activities or sources may be required. (2) The director shall have the authority to sue in competent courts to enjoin any threatened or continuing; (a) Violations of pollution source permits or conditions thereofwithout the necessity ofa prior revocation ofthe permit; or (b) Construction of an industrial or commercial air pollution source without a permitrequired under this chapter or rules adopted hereunder.121 ENVIRONMENTAL QUALITY

- HEALTH 39-116

(3) Thedepartmentis authorizedtocharge and collecta fee forprocessing applications for industrial or commercial air pollution source permits in accordance with a fee schedule established by the board pursuant to this chapter. For fees charged for operating permits under title V ofthe federal clean air act amendments of1990, the department shall notcharge a fee on any hazardous airpollutant otherthan those listed under section 112 ofthe federal clean air act. The fee schedule shall be structured to provide an incentive for emission reduction. (4) The director may issue air emission source permits to construct a facility to incinerate any waste or waste item contaminated with polychlorinated biphenyls (PCBs) only ifthe director finds: (a) Thefacilitywillnotbesitedin complexvalleyterrainwhere thevalley floor is less than five (5) miles wide and the valley walls rise more than

one thousand (1,000) feet; (b) The facility has complied with local planning and zoning requirements; (c) There has been an opportunity for public participation; and (d) The facility will employ best available technology and instrumentation. Subsection (4) of this section shall not apply to incineration activities existing on or beforeJanuary 1, 1987. [I.C., § 39-115, as added by 1973, ch. 138,§ 1,p.269;am. 1974,ch.23,§ 56,p. 633; am. 1987,ch. 135,§ 1,p.269;

am. 1987,ch. 198,§ 2,p. 411; am. 1993, ch. 275,§ 6,p. 926; am. 2000,ch. 132, § 23, p. 309.]

Compiler's notes. Former section 39-115, which comprised S.L. 1967, ch. 3Il, § 15, p. 870, was repealed by S.L. 1972, ch. 347, § 14, p. 1017.

Title V of the Federal Clean Air Act, referred to in this section, is compiled as 42 U.S.C. § 7661 et seq.

Section 112 ofthe Federal Clean Air Act, referred to in this section, is compiled as 42 U.S.C. § 7412 et seq.

Section 1 ofS.L. 1987, ch. 198 is compiled

as §§ 39·6201

- 39-6216.

Sections 5 and 7 ofS.L. 1993, ch. 275 are compiled as §§**39~l08** and 39-117, respectively.

Section 2 ofS.L. 1973, ch. 138 read: "The provisions ofthis actarehereby declared to be severable and ifany provisions ofthis act or the application ofsuch provisions to any**per~** son or circumstances is declared invalid for any reason, such declaration shall not affect the validity ofremaining portions ofthis act.'"

Section 3 ofS.L. 1973, ch. 138 declared an emergency. Approved March 15, 1973. Section 3 ofS.L. 1987, ch. 198 declared an emergency. Approved March 31, 1987.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall beinfull force and effecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in § 39-6205.

39-116, Compliance schedules.

- The director shall have the authority to issue compliance schedule orders to any person who is the source of anyhealthhazard, aircontaminant, waterpollution orsolid waste forwhich regulatory standards have been established, including regulatory standards39-117 HEALTHAND SAFETY 122

then in effect or to become effective at a future date or at future successive dates. The purpose ofanycompliance schedule order shall be to identify and establish appropriate acts and time schedules for interim actions by those persons who are or who will be affected by regulatory standards, such acts and schedules being desigued to assure timely compliance by those affected by the regulatory standards. Priorto the issuance ofa compliance schedule order, the director shall solicit the cooperation ofthe person to whom the compliance schedule order will be directed by providing the person notice thatidentifies withreasonable specificity the applicable statutes and rules, the events oroccurrences thatnecessitatethe order, and the proposedterms ofthe order and thatinforms the person that a conference withthe director 

### to discuss the proposed terms ofthe order shall be provided ifrequested within fifteen (15) days ofreceipt ofthe notice. Ifrequested, the director shall conferwith the person and shall solicitthe person's cooperation in the selection ofthe terms ofthe order. The compliance schedule order may be issued at any time after the conference, if one is requested, and the expiration of sixty (60) days following the receipt of the notice. Any compliance schedule order shall be enforceable in the same manner as any orderentered pursuantto section 39-108, Idaho Code, except the ordermay be challenged by an administrative appeal to the board as provided in section 39-107(5), Idaho Code. The order shall be effective and enforceable during an administrative appeal, unless the board orits desiguatedhearing officerissues a stay ofthe order. [I.e., § 39-116, as added by 1973, ch. 139, § l,p.270;am. 1974,ch.23,§ 57,p.633;am. 1986,ch.60,§ 7,p. 169; am. 2000, ch. 132, § 24, p. 309.]

Compiler's Dotes. Fonner section 39-116, which comprised S.L. 1967, ch. 311, § 16, p. 870, was repealed byS.L. 1972, ch. 347, § 14, p.l017.

Section 58 ofS.L. 1974, ch. 23 is compiled

as § 39-118.

Section 6 ofS.L. 1986, ch. 60 is compiled as § 39-11l.

Section 25 ofS.L. 2000, ch. 132, is compiled

as § 39-118.

Section 2 ofS.L. 1973, ch. 139 declared an emergency. Approved March 15, 1973.

Section 39 of S.L. 2000, ch. 132 provides: "(I) This actshall be in full force andeffecton and after July 1, 2000, except that the**Divi~** sion ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesig" nate all references to the Division ofEnviron· mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulga

w tioD, to comply with the provisions ofthis act. Until such time as a republication ofa rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the De· partment ofEnvironmental Quality,"



### 39-117. Criminal violation

- Penalty.

- (1) Any person who wilfully or negligently violates any of the provisions of the non-air quality public health or environmental protection laws or the terms ofany lawful notice, order, permit, standard, rule or regulation issued pursuant thereto, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine ofnot more than ten thousand dollars ($10,000) for each separate violation or one thousand dollars ($1,000) per day for continuing violations, whichever is greater.123 ENVIRONMENTAL QUALITY

- HEALTH 39-118

(2) Any person who knowingly violates any ofthe provisions ofthe air quality public health or environmental protection laws or the terms ofany lawful notice, order, permit, standard orrule issued pursuant thereto shall be guilty ofa misdemeanor and upon conviction thereof, shall be punished by a fine of not more than ten thousand dollars ($10,000) per day per violation. In addition, any person who knowingly releases into the ambient air anyhazardous airpollutantlisted pursuant to section 112 ofthe federal clean air act 42 USC 7412, or any extremely hazardous substance listed pursuantto42USC 11002(a)(2)thatis notlisted undersection 112, andwho knows at the time that he thereby places another person in imminent danger ofdeath or serious bodily injury shall, upon conviction, be punished bya fine ofnotmore than two hundred fiftythousand dollars ($250,000) per day, orbyimprisonmentofnotmore than fifteen (15) years orboth suchfine and imprisonment. Any person committing such violation which is an organization, shall, upon conviction under this subsection, be subject to a fine ofnotmore than one million dollars ($1,000,000) for each violation. For any air pollutant for which the environmental protection agency or the board ofhealth and welfare has set an emissions standard orfor any source for which a permit has been issued under title V of the clean air act amendments of 1990, a release ofsuch pollutant in accordance with that standard or permit shall not constitute a violation ofthe provisions ofthis subsection. [I.C., § 39-117, as added by 1973, ch. 137, § I, p. 268; am. 1986, ch. 60, § 8, p. 169; am. 1993, ch. 275, § 7, p. 926; am. 1998, ch. 125, § 3, p. 461.]

Compiler's notes. Former section 39-117. which comprised 8.L. 1967, ch. 311, § 17, p. 870, was repealed by 8.L. 1972, ch. 347, § 14, p.1017.

Sections 6 and 8 ofS.L. 1993, ch. 275 are compiled as §§**39~115** and 39-llBE, respectively.

Sections 2 and 4 ofS.L. 1998, ch. 125 are compiled as §§ 39·111 and 39·4411, respectively.

Section 2 ofS.L. 1973, ch. 137 declared an emergency. Approved March 15, 1973.

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

..

Sec. to sec. ref. -This section is referred to in § 39-1606.

39-118. Review ofplans.

- (1) Except as provided for dairy systems pursuant to section 37-401, Idaho Code, all plans and specifications for the construction ofnew sewage systems, sewage treatment plants or systems, other waste treatment or disposal facilities, public water supply systems or public water treatment systems orfor modification or expansion to existing sewage treatment plants or systems, waste treatment or disposal facilities, public water supply systems or public water treatment systems, shall be submitted to and approved by the director before construction may begin, and all construction shall be in compliance therewith. No deviation shall be made from the approvedplans and specifications withoutthe priorapproval ofthe director. Within thirty (30) days ofthe completion of construction, alteration, or modification ofany new sewage systems, sewage treatment plants or systems, otherwaste treatment ordisposal facilities, public water supply systems or public water treatment systems, complete and accurate plans and specifications depicting the actual construction, alteration, or modification performed must be submitted to the director. Ifconstruction39-118 HEALTHAND SAFETY 124

does not deviate from the original plans previously submitted for approval,

a statement to that effect shall be filed with the director. (2) All plans and specifications submitted to satisfy the requirements of this section shall conform in style and quality to regularly accepted engineering standards. Except with respect to plans and specifications for facilities addressed in subsection (3) ofthis section, and confined animal feeding operations, the board may require that certain types ofplans and specifications must be certified by registered professional engineers. Ifthe director determines that any particular facility or category offacilities will produce no significant impact on the environment or on the public health, the director shall be authorized to waive the submittal or approval requirement for that facility or category offacilities. (3) All plans and specifications for the construction, modification, expansion, or alteration ofwaste treatment or disposal facilities for aquaculture facilities licensed by the departmentofagriculture for both commercialfish propagation facilities as defined in section 22-4601, Idaho Code, and sport fish propagation facilities whether private or operated or licensed by the department offish and game and other aquaculture facilities as defined in the Idaho waste management guidelines for aquaculture operations, shall be submitted to and approved by the director ofthe department ofenvironmental quality before construction may begin and all construction shall be in compliance therewith. The director shall review plans and specifications within forty-five (45) days ofsubmittal and notify the owner or responsible party ofapproval or disapproval. In the event ofdisapproval the director shall provide reasons for disapproval in writing to the ownerorresponsible party. Plans andspecifications shall conforminstyle andqualityto standard industry practices and guidelines developed pursuant to this subsection. The director shall establish industry guidelines or best management practices subcommittees composed of members of the department, specific regulatoryagencies for theindustry, general public, andpersonsinvolved in the industrytodevelop andupdateguidelines orbestmanagementpractices

as needed. Within thirty (30) days ofthe completion ofthe construction, modification, expansion or alteration offacilities subject to this subsection, the ownerorresponsible party shall submit a statementto the directorthat the construction has been completed and is in substantial compliance with the plans and specifications as submitted and approved. The director shall conductan inspection within sixty (60) days ofthe date ofsubmission ofthe
statementand shallinform the ownerorresponsible party ofits approval of theconstruction orin theeventofnonapproval, thereasons fornonapproval. [I.C., § 39-118, as addedby 1973, ch. 136, § 1, p. 267; am. 1974, ch. 23, § 58, p. 633; am. 1976,ch. 116,§ l,p.453;am. 1986,ch.60,§ 9,p. 169; am. 1994, ch. 290, § l,p. 910; am. 1996, ch. 80, § 1, p. 262; am. 2000,ch. 132, § 25, p.309.]

Compiler's notes. Former section 39-118, which comprised S.L. 1967, ch. 311, § 18, p. 870, was repealed by S.L. 1972, ch. 347, § 14, p.l017.

Sections 57 and 59 ofS,L. 1974, ch. 23 are compiled as §§**39~116** and 39-269. Sections 24 and 26 ofS.L. 2000, ch. 132, is compiled as §§ 39-116 and 39-118D.

Section 2 ofS.L. 1973, ch. 136 declared an emergency. Approved March 15, 1973.

Section 2 ofS.L. 1976. ch. 116 declared an emergency. Approved March 16, 1976.125 ENVIRONMENTAL QUALITY

- HEALTH 39-118A

Section 2 ofS.L. 1996, ch. 80 declared an emergency. Approved March 6, 1996.

Section 182ofS.L. 1974, ch. 23 providedthe act should be in full force and effect on and after July 1, 1974.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall be in full force and effecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the**De~** partment ofEnvironmental Quality."

Sec. to sec. ref. This section is referred to in § 22-4905.

Denial ofPennit.

Wherehomeowners failed to showthatthey would suffer any additional burden by connecting onto privately owned sewer line than the burden they would bear if required to connect to a publicly owned sewer line. the District Board of Health could deny the homeowners' permits to construct a filtration system on their property on the grounds that

a superior sewer collection system was reasonablyavailable. Lindstrom v. District Bd. of Health, 109 Idaho 956,712 P.2d 657 (Ct. App. 1985).

39-118A. Ore processing by cyanidation.

- (1) All plans and specifications for the construction ofthatpartofa new ore-processing facility, or for modification or expansion to an existing ore-processing facility, that is intendedto contain, treat, ordispose process water orprocess-contaminated
water containing cyanide shall be submitted to and approved by the department before construction may begin, and all construction shall be in compliance therewith. Within thirty (30) days of the completion of such construction, modification or expansion, complete and accurate plans and specifications depicting that actual construction, modification or expansion does not deviate from the original approved plans and specifications, shall be submitted to the department. All plans and specifications submitted to satisfy the requirements of this section shall be certified by registered professional engineers. (2) That portion of a new ore-processing facility, or a modification or expansion ofan existing ore-processing facility, which utilizes cyanidation and is intended to contain, treat or dispose process water or processcontaminated water containing cyanide shall not be constructed, operated,

orclosedpriorto a permitbeingobtained from the department. The director may require a reasonable fee for processing permit applications, and financial assurance forpermanentclosure ofa new ore-processingfacility, or

a modification or expansion to an existing ore-processing facility. (3) An existing facility which utilizes cyanidation water or processcontaminated water containing cyanide shall not be subject to the provisions of subsections (1) and (2) of this section if such facility shall be registered by the owneror operatorusing a form provided by the director of the department. Failure to register an existing facility shall subject such facility to the provisions of subsections (1) and (2) of this section. [I.e., § 39-118A, as added by 1987, ch. 356, § 1, p. 789.J

Compiler's notes. Section 2 ofS.L. 1987, ch. 356 declared an emergency. Approved April 6, 1987.39-118B HEALTHAND SAFETY 126

39·118B. Relationship to federal law.

- The board may promulgate rules andregulations to ensure thatthe state ofIdaho is in compliance with the provisions ofthe federal clean air act. 

### To the extent that the federal clean air act sets forth or the United States environmental protection agency adopts or has adopted a specific standard, emission limitation or control technology requirement under the clean air act, a more stringent standard, emission limitation or control technology requirement promulgated by the board shall not become effective until specifically approved by
statute: [I.C., § 39-118B, as added by 1993, ch. 275, § 1, p. 926.]

Compiler's notes. The Federal Clean Air Act, referred to in this section, is compiled as 42 U.S.C. § 7401 et seq.

39·1l8C. Legislative findings and declaration of purpose.

- (1) The legislature finds that it is an obligation ofthe state ofIdaho under title V ofthe clean air act to provide for an operating permit program for

sources ofair pollution within the state. (2) The purpose ofthese amendments to the environmental protection and health act is to meet the state's obligation to protect air qualitywith a cost-effective operating permit program. (3) Thelegislatureintends thatthe department's regulation undertitleV ofthe clean air act shall take advantage ofthe flexibility authorized by the federal clean air actto establishreasonable and cost-effectiverequirements. Such requirements shall include, but not be limited to: (a) Operating flexibility provisions; (b) Provisions allowing off-permit changes; (c) Provisions that limit federally enforceable hazardous air poliutanF requirements to that group ofpollutants listed under section 112 ofthe federal clean air act (to the extent that the operating permits address hazardous air pollutants); (d) Provisions for operatingpermits to be issuedfor fixed terms offive (5) years; provided that, in order to facilitate the implementation ofthe title V operating permit program, the director may issue operating permits withterms offromthree (3) tofive (5) years duringthe firstthree (3)years following environmental protection agency approval of Idaho's title V operatingpermitprogram so long as thosepermitswithfixed terms ofless thanfive (5) years are renewedwith terms offive (5) years thereafter; and provided further that ifthe maximum operating permit term under the federal clean air act shouldbe extended beyondfive (5) years, the director shall similarly extend the term of operating permits issued under the Idaho program; and provided further, that shorter terms are allowable when mutually agreed upon by the department and the applicant; (e) Provisions for adequate, streamlined and reasonable procedures for processing modifications, including establishing criteria to determine insignificant changes that shall not require a permit modification, and establishing classes of modifications based on significance which shall include a minor modification class for which modifications may be processed in group as authorized by 40 

### CFR 70.7(e)(3) as may be amended; and127 ENVIRONMENTAL QUALITY

- HEALTH 39-119

(f) Provisions allowing an existing source to make changes that reduce emissions without applying for a permitto construct or an amendment to

an operating permit; provided, however, that an existing source that makes such changes may seek and obtain an operating permit modification ifit chooses. [LC., § 39-118C, as added by 1993, ch. 275, § 2, p. 926.J

Compiler's notes. Former § 39-USC, which comprised I.e., § 39-lIBC, as added by 1991. ch. 229, § 1, p. 548, was repealed by S.L. 1992, ch. 189, § 4.

Title V of the Federal Clean Air Act, referred to in this section, is compiied as 42 U.S.C. § 7661 et seq.

Section 112 of the Federal Clean Air Act, referred to in this section, is compiled as 42 U.S.C. § 7412 et seq.

39-118D. Idaho air quality permitting fund.

- (1) All moneys received from fees collected from the pollution sources requiring permitting under title V of the federal clean air act amendments of 1990 shall be forwarded to the department ofenvironmental quality and shall bepaidinto the Idaho air quality permitting fund which is hereby createdin the office of the state treasurer. (2) Such moneys and all interest earned thereon shall be kept in the Idaho air quality permitting fund and shall be expended for the technical, legal and administrative support necessary for implementing the operating permit program required under title V ofthe federal clean air act amendments of 1990. (3) All salaries, costs and expenses incurred by the department of environmental quality in performing the duties and the exercise of its powers in carrying out the operating permitprogram required under title V ofthe federal clean air act amendments of 1990 shall be paid out ofthe air quality permitting fund. [I.C., § 39-118D, as added by 1993, ch. 275, § 3, p. 926; am. 2000, ch. 132, § 26, p. 309.J

Compiler's notes. Title V of the Federal Clean Air Act, referred to in this section, is compiled as 42 U.S.C. § 7661 et seq.

Section 4 ofS.L. 1993, ch. 275 is compiled

as § 39·105.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall bein full force and effecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication ofa rule

occurs. any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-118E. Small business assistance.

- The department shall implement a small business assistance program as required in 42 U.S.C. 7661A. [I.C., § 39-118E, as added by 1993, ch. 275, § 8, p. 926.J

Compiler's notes. Section 7 ofS,L. 1993, ch, 275 is compiled as § 39-117.

39-119. ronmental Collection offees for services.

- The department ofenviquality is hereby authorized to charge and collect reasonable39-120 HEALTH AND SAFETY 128

fees, established by standards formulated by the director and approved by the board through rulemaking, for any service rendered by the department. [I.C., § 39-119, as added by 1975, ch. 182, § 1, p. 499; am. 2000, ch. 132, § 27, p. 309.J

Compiler's notes. Former section**39~1l9,** which comprised S.L. 1967, ch. 311, § 19, p. 870, was repealed by S.L. 1972, ch. 347, § 14, p. 1017.

Section 2 ofS.L. 1975, ch. 182 declared an emergency. Approved March 27, 1975.

Section 39 ofS.L. 2000, ch. 132 provides: "(1) This actshall be infull force and effecton and after July 1, 2000, except that the**Divi~** sian ofEnvironmental Quality shall have ODe (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department. (2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Ad· ministrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-120. Department of environmental quality primary administrative agency

- Agency responsibilities.

- (1) The department of environmental quality is designated as the primary agency to coordinate and administer ground water quality protection programs for the state.

(2) Recognizing that the department ofwater resources has the responsibility to maintain the natural resource geographic information system for the state and is the collectorofbaseline data for the state's waterresources, that the department of environmental quality has the responsibility for collecting and monitoring data for waterquality managementpurposes and that the department ofagriculture is responsible for regulating the use of pesticides and fertilizers and for licensing applicators, the department of environmental quality, the department ofwater resources and the department ofagriculture shall: (a) Develop a ground water monitoring plan, concurrently with the development ofa ground water quality plan, for development and administration ofa comprehensive ground water quality monitoring network, including point ofuse, point ofcontamination and problem assessment monitoring sites across the state and the assessment ofambient ground
water quality utilizing, to the greatest degree possible, collection and coordination ofexisting data sources. (b) Establish a system or systems within state departments and political subdivisions of the state for collecting, evaluating and disseminating ground water quality data and information. (c) Develop and maintain a natural resource geographic information system and comprehensive water resource data system. The system shall be accessible to the public. (3) The responsible state departments orboards should adoptrules which specify the general standards for determining actions necessary to prevent ground water contamination and cleanup actions necessary to meet the goals ofthe state. (4) The director ofthe department ofenvironmental quality may develop and recommend for approval by the board through rulemaking, ambient ground waterquality standards for contaminants for which the administra-129 ENVIRONMENTAL QUALITY

- HEALTH 39-121

tor ofthe United States environmental protection agency has established drinkingwatermaximum contaminantlevels. The directormaydevelop and recommend for approval by the board, through rulemaking, ground water quality standards for contaminants for which the administrator of the United States environmental protection agency has not established drinking water maximum contaminant levels. However, the existence of such standards, or the lack of them, should not be construed or utilized in derogation of the ground water quality protection goal and protection policies ofthe state. (5) The departments of environmental quality, water resources and agriculture should take actions necessary to promote and assure public confidence and public awareness of ground water quality protection. In pursuingthis goal, the departments and publichealth districts should make public the results ofinvestigations concerning ground water quality subject
to the restrictions contained in section 39-111, Idaho Code. [I.C., § 39-120.

as added by 1989, ch. 421, § 2, p. 1027; am. 1990, ch. 151, § 1, p. 334; am. 2000, ch. 132, § 28, p. 309.]

Compiler's notes. Former §§ 39-120

-**39~127,** which comprised S.L. 1967, eh. 311, §§ 20

- 26, p. 870; am. 1969, eh. 13, § 1, p. 18: 1969. ch. 337, § 1, p. 1060; 1972. ch. 44, § 4, p. 67, were repealed by S.L. 1972, eh. 347, § 14, p. 1017.

Section 1 ofS.L. 1989. ch. 421 is compiled

as § 39·102.

Section 2 ofS.L. 1990, eh. 151 is compiled

as § 39-123.

Section 39 of S.L. 2000, eh. 132 provides: "( 1) This actshall be in full force and effect on and after July 1, 2000, except that the Division ofEnvironmental Quality shall have onc 11) year thereafter to accomplish necessary changes to complete the physical transition to the new department. (2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall**redesig~** nate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEm'ironmenta] Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time a;; a republication of a rule occurs, any reference in a rule to the Division ofEnvironmental Qualit.v shall mean the**D~­** partment ofEm'ironmental Quality."

Sec. to sec. ref. This section is referred to in**~§** 22-4903 and**39~121.**

39-121. Definitions.

- As used in section 39-102. Idaho Code, and in sections 39-120 through 39-127, Idaho Code:

(1) "Cleanup" means removal. treatment or isolation of a contaminant from ground water through the directed efforts ofhumans or the removal or treatment ofa contaminant in ground water through management practice

or the construction of barriers, trenches and other similar facilities for prevention ofcontamination, as well as the use ofnatural processes such as ground water recharge, natural decay and chemical or biological decomposition.

(2) "Contaminant" means any chemical, ion, radionuclide, synthetic organic compound, microorganism, waste or other substance which does not

occur naturally in ground water or which naturally occurs at a lower concentration.

(3) "Contamination"means the direct orindirectintroduction into ground
water ofany contaminant caused in whole or in part by human activities.

(4) "Ground water" means any water ofthe state which occurs beneath the surface ofthe earth in a saturated geological formation ofrock or soil.39-122 HEALTH AND SAFETY 130

(5) "Groundwaterqualityplan" or"ground waterqualityprotectionplan"

means the Idaho ground water quality plan adopted by the legislature in section 1, chapter 310, laws of 1992, and in section 1, chapter 273, laws of 1995. [I.C., § 39-121, as added by 1989, ch. 421, § 2, p. 1027; am. 2000, ch. 132, § 29, p. 309.J

Compiler's notes. Former §**39~** 121 was repealed. See Compiler's notes, §**39~120.**

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall be in full force andeffecton and after July 1, 2000, except that the Division ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Ad· ministrative Rules Coordinator shall**redesig~** nate all references to the Division of**Environ~** mental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or**promulga~** tion, to comply with the provisions ofthis act. Until such time as a republication ofa rule
occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the**De~** partment ofEnvironmental Quality."

39-122

- 39-125. Ground waterquality council created; completion of ground water quality plan; amendment or rejection; chairman

- quorum. [Repealed.l

Compiler's notes. Former § 39-122, which comprised LC., §**39~122,** as added by 1989, ch. 421, § 2, p. 1027, was repealed by S.L. 2000, ch. 132, § 30, effective July 1, 2000.

Former § 39-123, which comprised I.C., § 39·123, as added hy 1989, ch. 421, § 2, p. 1027; am. 1990, ch. 151, § 2, p. 334, was repealed by S.L. 2000, ch. 132, § 30, effective July 1, 2000. Former §**39~124,** which comprised I.e., § 39·124, as added by 1989, ch. 421, § 2, p. 1027, was repealed by S.L. 2000, ch. 132, § 30, effective July I, 2000.

Former § 39-125, which comprised I.C., § 39·125, as added hy 1989, ch. 421, § 2, p. 1027, was repealed hy S.L. 2000, ch. 132, § 30, effective July 1, 2000.

39-126. Duties of state and local units of government.

- (1) All
state agencies shall incorporatethe adopted ground waterqualityprotection plan in the administration oftheirprograms and shall have such additional authority to promulgate rules to protect ground water quality as necessary to administer such programs which shall be in conformity with the ground water quality protection plan. Cities, counties and other political subdivisions ofthe state shall incorporate the groundwater quality protectionplan in their programs and are also authorized and encouraged to implement ground water quality protection policies within their respective jurisdictions, provided that the implementation is consistent with and not preempted by the laws ofthe state, the ground water quality protection plan and any rules promulgated thereunder. All state agencies, cities, counties and other political subdivisions shall cooperate with the department of environmental quality, the departmentofagriculture and the departmentof
waterresources in disseminating public information and education materials concerning the use and protection ofground water quality, in collecting ground water quality management data, and in conducting research on technologies to prevent or remedy contamination ofground water. (2) Notwithstanding any other provision oflaw to the contrary, except as provided in subsection (3) of this section, whenever a state agency, city, county or other political subdivision ofthe state issues a permit or license131 ENVIRONMENTAL QUALITY

- HEALTH 39-127

which deals with the environment, the entity issuing the permit or license shall take into accountthe effectthe permittedorlicensed activitywill have

on the ground water quality ofthe state and itmay attach conditions to the permitorlicensein orderto mitigate potential oractual adverse effects from the permitted or licensed activity on the ground water quality ofthe state. Nothing containedin this section shall authorize a state agency, city, county

or other political subdivision of the state to issue or require a permit or license which it is not otherwise allowed by law to issue or require.

(3) Except as otherwise provided by the ground water quality protection plan, ifa permit or license which deals with the environmentis required to be obtained from a state agency and that agency considers the effect ofthe permitted orlicensed activity on ground water quality, after notice to other units ofgovernment which may otherwise have regulatory authority over the activity which is the subject ofthe permit or license, a city, county or other political subdivision ofthe state shall not prohibit, limit or otherwise condition the rights ofthe permittee orlicensee underthe permit orlicense

on account of the effect the permitted or licensed activity may have on ground water quality.

Nothing contained in this section shall be deemed to permit cities, counties orotherpolitical subdivisions ofthe stateto regulate groundwater quality with respect to any activity for which another statute or other
statutes may have expressly or impliedly preempted such local ground water quality regulation. [I.C., § 39-126, as added by 1989, ch. 421, § 2, p. 1027; am. 2000, ch. 132, § 31, p. 309.]

Compiler's notes. Former § 39·126 was repealed. See Compiler's notes, § 39-120.

Section 32 ofS.L. 2000, ch. 132, is compiled

as § 39-129.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshallbe in full force and effecton and after July I, 2000, except that the Divi· sian ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions ofChapter 52, Title 67, Idaho Code, the Administrative Rules Coordinator shall redesignate all references to the Division ofEnvironmental Quality which appear in the master rule database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulga· tion, to comply with the provisions ofthis act. Until such time as a republication ofa rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality. n


### 39-127. Application offertilizers 

### and pesticides. -No person shall be liable for ground water contamination resulting from the application of fertilizers or pesticides if the person applies a fertilizer according to generally accepted agronomic practices, or applies a pesticide product registeredunderthe federal insecticide, fungicide, rodenticide act according
to label requirements, including precautionary statements, of the 

## u.s. environmental protection agency, and such application ofthe pesticide or fertilizer is otherwise done with the proper equipment required by law, is without negligence and is in accordance with state laws. [I.C., § 39-127, as added by 1989, ch. 421, § 2, p. 1027.J

Compiler's notes. Former § 39-127 was repealed. See Compiler's notes, § 39-120.

Section 4 ofS.L. 1989, ch. 421 read: "Short title. This act may be known and cited as the "Ground Water Quality Protection Act of 1989,"39-128 HEALTHAND SAFETY 132

Section 3 ofS.L. 1989, ch. 421 is compiled Sec. to sec. ref. This section is referred to

as § 67-6537. in § 39-121.



### 39-128. Applicability

- Promulgation ofrules

- Establishment ofzones - Combustor charging composition and recordkeeping

- Report to local government

- Permit processing.

- 1. Except as provided in subsection 2 ofthis section, the provisions ofthis section shall apply to medical waste combustors with a maximum rated capacity equal to

or greater than three (3) tons per day. 

### All combustors located on one (1) or
more contiguous or adjacentproperties and owned or operated by the same person orpersons undercommon control shall be consideredin determining the maximum rated capacity ofa combustor.

2. The department is hereby directed to develop and propose, and the board is hereby directed to adopt, rules and regulations controlling emissions ofair contaminants from all medical waste combustors, and implementing the provisions ofthis section except the provisions ofsubsections 8 and 9.

3. The following zones are hereby established:

a. Zone 1, consisting of the counties of Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce and Shoshone. b. Zone 2, consisting of the counties of Ada, Adams, Boise, Canyon, Elmore, Gem, Owyhee, Payette, Valley and Washington.

c. Zone 3, consisting ofthe counties ofBannock, Bear Lake, Bingham, Blaine, Bonneville, Butte, Camas, Caribou, Cassia, Clark, Custer, Franklin, Fremont, Gooding, Jefferson, Jerome, Lemhi, Lincoln, Madison, Minidoka, Oneida, Power, Teton and 'I\vin Falls. 4. Any county may petition the director to become incorporated into an adjacent zone. The director shall grant the petition provided it does not conflictwith the purposes ofthis act, oranyrule, regulation, permitororder issued or promulgated pursuant to this act. 5. Forany combustorconstructed ormodified afterthe date ofenactment of this section, no less than seventy per cent (70%) of the weight of the material charged into the combustor on an annual basis shall be material generated inside the zone in which the combustor is located. 6. An owneroroperatorofa combustorconstructed and operatedpriorto the date ofenactment ofthis section shall, by October 1, 1992, notify the department in writing describing the type, location and maximum rated capacity ofthe combustor. 7. Any personwho owns oroperates a combustor shall keep records as to the source, weight and type ofmaterial charged, and whether the material

was generated within oroutside the zone in which the combustoris located. Theserecords shallbe maintainedfor a period ofnotless than five (5) years and shall be made available to the department upon request. The requirements ofthis subsection may be fully or partially waived by the director if the owneroroperatorcertifies to the departmentthatnomaterial generated outside the zone shall be charged into the combustor.

8. Anypersonproposingto constructormodifya combustor shallprovide, in writing, to the local government a comprehensive report which shall include:133 ENVIRONMENTAL QUALITY

- HEALTH 39-128

a. An overall description ofthe project; b. The amount, type and disposal method ofall solid waste produced;

c. The amount and content ofany liquid to be discharged into the sewer system, applied to the land, ordischarged into an impoundment or pond; d. The amount, type and control ofair emissions;

e. The effect ofthe facility on vehicular traffic; f. The amount ofnoise produced by the facility; g. The extent and control ofodors from the facility; and h. Any additional information requested, in writing, by the local governmentpertaining to the effect ofthe proposed facility upon the community

or local resources. 9. The local government shall conduct at least one (1) public hearing regarding any proposal to construct or modifY a combustor within the jurisdiction ofthe local government at which interested persons shall have

an opportunity to be heard. At least fifteen (15) days prior to the hearing, notice ofthe time andplace ofthe hearing, a briefsummary ofthe proposal, and the location ofthe comprehensive report required by the provisions of subsection 8 ofthis section, shall be published in a newspaper ofgeneral circulation within the jurisdiction of the local government. The local government shall, after hearing, notify in writing the person proposing to construct or modifY the combustor that the proposal conforms or does not conform to applicable planning and zoning ordinances. Reasonable conditions may be placed on any approval so as to ensure that construction or modification ofthe combustor is in conformance with local planning and zoningordinances and that all necessarylocal, state and federal permits are obtained. 10. Any person applying to the department for a permit to construct or modifY a combustor shall submit, as part ofthe application, the notification required in subsection 8 of this section indicating that the proposal conforms, or conforms with conditions, to local government planning and zoning ordinances. Any application received by the department which does
not include such a notification ofapproval or conditional approval shall be incomplete. 11. The director shall have authority to sue in competentcourts to enjoin any threatened or continuing violation ofthe provisions ofthis section, or any rule, regulation, permit or order issued or promulgated to implement the provisions ofthis section. The court shall grant injunctive reliefupon a showing that a violation of the provisions of this section or any rule, regulation, permit or order implementing the provisions ofthis section has occurred and is reasonably likely to continue. 12. The director shall have the authority to declare that an emergency exists and that a combustor may receive a waiver to combust material generated outside the zone in which the combustoris locatedin excess ofthe
amount specified in subsection 5 ofthis section, provided the director finds that such an action is necessary to protect human health and the environment. The waiver shall not extend beyond six (6) months for any single combustor and eighteen (18) months in total duration. 13. For purposes ofthis section only:39-129 HEALTH AND SAFETY 134

a. The term "combustor" means a medical waste combustor as defined in section 39-103, Idaho Code. b. The term "local government"means the city governmentfor the city in which the combustor is to be located or, ifthe combustor is to be located outside the limits ofan incorporated city, the county government for the county in which the combustor is to be located. [I.C., § 39-128, as added by 1992, ch. 189, § 2, p. 588.]

Legislative Intent. Section 1 ofS.L. 1992, ch. 189 read: "(1) The legislature ofthe State ofIdaho finds: "(al Maintainingthe airquality ofthe state of Idaho to protect human health and the environment is a paramount concern and**respon~** sibility ofthe legislature. "(b) Due to the diminishing capacity oflandfills nationwide and the increased costs of waste disposal, the amount ofmedical waste proposed for disposal by combustion in Idaho has and will increase significantly. "(c) The burning of medical waste, while an acceptable and effective form of disposal if controlled by reasonable measures, can create air emissions adversely affecting human health and the environment. "(d) Existing state rules and regulations do not adequately control the emission of air contaminants from medical waste**combus~** tors. "(e) The state's comprehensive efforts to**pre~** serve its valuable air quality resources are being threatened by the potential ofan unrestricted increase in medical waste. "(f) Uncontrolled increases in medical waste combustion can cause increased odors, noise, truck traffic and other significant adverse effects on local communities. "(g) The state's air quality resources will be threatened by the increased combustion of medical waste unless existing air resources
are conserved to meet the needs ofthe state and a fair share ofthe need ofother states. "(h) The amount of medical waste currently brought into orsent out oflarge regions ofthe state for purposes ofcombustion is negligible, and reasonable requirements controlling the combustion ofthese materials generated**out~** side of large regions of the state will not adversely affect industry or commerce inside

or outside large regions ofthe state. "(i) Theeffective local managementofsewage, drinking water, traffic, health protection, and otherlocal governmentconcerns is dependent

on thethorough knowledge ofall theprojected impacts ofa proposed medical waste**combus~** tor proposed within thejurisdiction ofa local government. "(2) Therefore, it is hereby declared that the purposes ofthis act are: "(a) To direct the department to develop and propose, and the board to adopt, rules and regulations controlling the emission of air contaminants from medical waste**combus~** tors. "(b) To establish a mechanism to control the amount of medical waste combusted within each major region ofthe state to those generated within the region plus a reasonable**por~** tion ofthese materials generated outside the region. "(c) To ensure that Idaho adequately**con~** serves its air quality resources in a manner which protects human health and the**envi~** ronment. "(d) To ensure that local communities and governments are provided with comprehensive information' and the ability to ensure compliance with local requirements for any proposed medical waste combustor prior to the processing ofa state air quality permit."

Compiler's notes. Former § 39-128, which comprised I.e., § 39-128, as added by 1970, ch. 18, § 1, p. 33, was repealed hy S.L. 1972, ch. 347, § 14, p. 1017.

Section 3 ofS,L. 1992, ch. 189 is compiled

as § 39·103.

39-129. Applicability

- Definition oflocal government and mandates

- Authorization for local government agreements

- Adoption ofrules

- Establishment of schedules

- Priority ofconsiderations

- Report and recommendations.

- (1) The provisions ofthis section shall apply to local governments providing drinking water, municipal waste disposal, municipal sewage or waste water disposal or treatment,

or airpollution abatement, which can demonstrate to the satisfaction ofthe department that increasing and cumulative regulatory requirements applicable to such services cannotbe metin a timely and reasonablemanner. The provisions ofthe section do not apply where prohibited by federal or state135 ENVIRONMENTAL QUALITY

- HEALTH 39-130

laws orregulations forthe protection ofhuman health andthe environment. (2) For purposes ofthis section the term "local government" means the government of a county or incorporated city, and the term "federal mandates" means those requirements arising from federal statutes or subsequentregulations administered by the United States environmental protection agency. (3) The department is hereby authorized to enter into agreements with local governments. The agreementmay include a binding schedule enforceable underthis chapter for the improvement, modification, construction, or other actions, necessary in order for the local government to come into compliance as expeditiously as practicable with human health and environmental protection statutes and rules stemming from federal mandates. (4) The department may propose, and the board adopt, rules necessary for the implementation ofthis section. (5) In establishing anylocal governmentagreement schedule, the term of the agreement shall not exceed fifteen (15) years, although successive agreements may be entered into. All agreements must be signed by the director or his designee and the mayor ofthe city or county commissioners of the county, as appropriate. All agreements are enforceable as orders under the provisions ofthis chapter. (6) Agreements and schedules entered into under this act shall take into account, in descending priority the: (a) Protection ofpublic health; (b) Protection ofthe environment; (c) Current tax structure and rates as compared to other local governments; (d) Ability ofthe local government to pay for costs ofcompliance; (e) Current fiscal obligations ofthe local government; (f) Other factors as determined by the department or the board. [I.C., § 39-129, as added by 1994, ch. 162, § 2, p. 369; am. 2000, ch. 132, § 32, p.309.]

Compiler's notes. Sections 31 and 33 of S.L. 2000, ch. 132, are compiled as §§ 39·126 and**39~414,** respectively.

Section 39 of S.L. 2000, ch. 132 provides: "(1) This actshall be in full force and effecton and after July I, 2000, except that the Divi· sian ofEnvironmental Quality shall have one (1) year thereafter to accomplish necessary changes to complete the physical transition to the new department.

(2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho Code, the Ad· ministrative Rules Coordinator shall redesig· nate all references to the Division ofEnvironmental Quality which appear in the master role database maintained by the coordinator, to the Department ofEnvironmental Quality without further republication or promulgation, to comply with the provisions ofthis act. Until such time as a republication of a rule occurs, any reference in a rule to the Division ofEnvironmental Quality shall mean the Department ofEnvironmental Quality."

39-130. Emergency Medical Services

- Definitions

- Responsibilities, [Repealed,]

Compiler's notes. This section, which comprised I.C., § 39·130, as added by 1971, ch. 42, § 1, p. 89, was repealed by S.L. 1972, ch. 347, § 14, p. 1017.39-131 HEALTH AND SAFETY 136

39-131

- 39-136. Emergency medical services

- Intent

- Defini. tions

- Authorized actions

- Rules and regulations

_ Liability

- Failure to obtain consent. [Repealed.]

Compiler's notes. These sections which comprised I.e., §§ 39-131

- 39-136 as added by S.L. 1972, cb. 92, §§ 1 - 6, p. 200; am. 1980,

39-137

- 39-138. [Reserved.] cb. 145, §§ 1-6, p. 310, were repealed by § 1 ofS.L. 1996, ch. 26, effectiveJuly 1, 1996. For present law see § 56-1011 et seq.

39-139

- 39-170. [Amended and Redesignated.]

Compiler's notes. Sections 39·139

-**39~** §§ 56-1011- 56-1040 pursuant to S.L. 2001, 170 were amended and redesignated as ch. 110, §§ 4-35.

39-171. Legislative findings and purpose. - The legislature ofthe
state ofldaho finds that:

(1) Wood and mill yard debris is a byproduct of wood processing and manufacturing; and (2) Ifproperlymanaged, wood and mill yard debris can be putto uses that have economic and environmental benefits; and (3) There is a need for guidance about how to manage, store, use or dispose ofwood and mill yard debris so that nuisance and adverse environmental impacts are minimized; and (4) This guidance will enable the department and local units ofgovernment to more effectively regulate the use or disposal ofwood and mill yard debris.

The purpose ofsections 39-171 through 39-174, Idaho Code, is to provide guidance for the sound use, storage, management and disposal ofwood and mill yard debris by requiring the director ofthe department ofenvironmental quality to appoint a committee to study the issues and to gather and disseminate information to persons and entities that deal with wood and mill yard debris. [I.C., § [39-171] 39-166, as added by 1996, ch. 204, § 1, p. 627; am. and redesig. 2001, ch. 103, § 15, p. 253.]

Compiler's notes. This section was formerly compiled as § [39-171J 39-166.

S.L. 1996, cb. 147, § 1, and cb. 204. § 1, both effectiveJuly 1, 1996, purported to enact

a new section of chapter 16, title 39, Idaho Code, designated as § 39-166. Since § 39-166

as enacted by ch. 147, § 1 was approved first, it has been compiled as §**39~166** and § 39- 166 as enacted by ch. 204, § 1, has been compiled as § [39-171J 39-166. The words "this act" refer to S.L. 1996, ch. 204 wbicb is compiled as §§ [39-171J 39-166

- [39-174J 39-169.

Section 14 ofS.L. 2001, ch. 103 is compiled

as § 39-104A.

Sec. to sec. ref. Sections 39-171

- 39·174

are referred to in §**39~172.**

39-172. Definitions.

- Forpurposes ofsections 39-171 through 39-174, Idaho Code: (1) "Committee" means the wood and mill yard debris committee. (2) "Director" means the director ofthe Idaho department ofenvironmental quality.

(3) "Wood or mill yard debris" means solid wood, bark, or wood fiber generated from the process of manufacturing wood products that may137 ENVIRONMENTAL QUALITY

- HEALTH 39-174

include components of soil, rock, or moisture, and for which the use, management, storage or final disposition is approved pursuant to sections 39-171 through 39-174, Idaho Code. [I.C., § [39-172J 39-167, as added by 1996, ch. 204, § 2, p. 627; am. and redesig. 2001, ch. 103, § 16, p. 253.J

Compiler's notes. This section was formerly compiled as § [39-172J 39-139.

S.L. 1996, ch. 147, § I, and ch. 204, § 2, both effectiveJuly 1, 1996, purportedto enact
a new section ofchapter 16, title 39, Idaho Code, designated as § 39-167. Since § 39-167 as enacted by ch. 147, § 1 was approved first, it has been compiled as § 39-167 and § 39- 167 as enacted by ch. 204, § 2, has been compiled as § [39-172139-167.

For words "this act," see Compiler's notes, § 139-171139-166.

39·173. Committee

- Members

- Terms.

- The director shall appoint a committee to develop guidance on the use, storage, management and disposal ofmill yard or wood debris. This committee shall consist of

seven (7) individuals and shall include:

(1) One (1) representative ofthe department ofenvironmental quality, who will provide administrative and other support to the committee. (2) Two (2) representatives ofthe public health districts which have mill yard or wood debris within their districts.

(3) Two (2) representatives from industries generating wood or mill yard debris.

(4) Two (2) members with demonstrated technical knowledge important
to the work ofthe committee.

Committee members shall be appointed to serve three (3) year terms. No member may serve more than two (2) full terms. Members serve at the pleasure ofthe director.

Members ofthe committee shall serve without compensation pursuant to section 59·509(a), Idaho Code. [I.C., § [39-173J 39-168, as addedby 1996, ch. 204, § 3, p. 627; am. and redesig. 2001, ch. 103, § 17, p. 253.]

Compiler's notes. This section was formerly compiled as § [39-1731 39-139.

S.L. 1996, ch. 147, § I, and ch. 204, § 3, both effectiveJuly I, 1996, purported to enact
a new section ofchapter 16, title 39, Idaho Code, designated as § 39-168. Since § 39-168

as enacted by ch. 147, § 1 was approved first, it has been compiled as § 39-168 and § 39· 168 as enacted by ch. 204, § 3, has been compiled as [§ 39·173139-168.

39-174. Committee duties

- Meetings.

- The committee's duties shall include: (1) Developing a manual providing guidance for the use, storage, management and disposal of wood or mill yard debris to prevent public nuisances and minimize or prevent harmful environmental impacts. Guidance providedbythemanual maybeincorporated oradoptedbyreferencein the rules ofthe department or other appropriate state agencies. (2) Considering and developing specific solutions to unforeseen wood or mill yard debris use, storage, management or disposal as needed.

(3) Developing and sharing knowledge related to the use, storage, management and disposal of wood or mill yard debris including ways to constructively use or reclaim the debris.39-174 HEALTH AND SAFETY 138

(4) Making recommendations for any necessary permits, rules or legislationrelated to the use, storage, managementordisposal ofwood ormillyard debris.

The committee shall meet atleasttwo (2) times a year at a time and place
most convenient to the majority ofmembers. [I.C., § [39-174] 39-169, as added by 1996, ch. 204, § 4, p. 627; am. and redesig. 2001, ch. 103, § 18, p. 253.]

Compiler's notes. This section was formerly compiled as § 139-174139-139.

S.L. 1996, ch. 147, § 1, and ch. 204, § 4, both effectiveJuly 1, 1996, purported to enact

a new section ofchapter 16, title 39, Idaho Code, designated as §**39~169.** Since § 39-169 as enacted by ch. 147, § 1 was approved first, it has been compiled as § 39·169 and § 39- 169 as enacted by ch. 204, § 4, has been compiled as [§ 39-1741 39-169.

Section 19 ofS.L. 2001, ch. 103 is compiled

as § 39-3003.

CHAPTER 2

VITAL STATISTICS

SECTION. 39-201

- 39-210. [Repealed.1 39-211. [Amended and Redesignated.] 39-212

- 39-217. /Repealed.! 39-218. [Amended and Redesignated.] 39-219

- 39-221. [Repealed.l 39-222

- 39-234. [Repealed.l 39-235

- 39-239. [Reserved.1

VITAL STATISTICS ACT

39-240. Short title. 39-241. Definitions. 39-242. Duties ofdirector. 39-243. State registrar ofvital statistics. 39-244. Duties ofstate registrar. 39-245. Certificate forms. 39-246. Local registration districts. 39-247. Local registration officers.**39~248.** Other employees. 39-249. Transmittal ofcertificates and local records.**39~250.** Completion and correction ofcertificates

- Procedure

- Other alterations prohibited.**39~251.** Compensation oflocal registrars.**39~252.** Fee for copies, searches and other services.**39~253.** Accounting for fees.**39~254.** Payment offees to local registration officers.**39~255.** Registration ofbirths.**39~256.** Registration offoundlings.**39~257.** Marriage of natural parents ofperson born in Idaho

- Judicial determination ofparentage of person born in Idaho

- New birth certificates

- Procedure. 39-258. Adoption ofpersons born in Idaho

- SECTION. New birth certificate issued to replace original certificate

- Procedure

- Adoption proceedings not open to inspection with certain exceptions

- Duties ofthe clerks ofcourts issuing adoption decrees

- Duties ofstate registrar of**vi~** tal statistics.**39~259.** Adoption of persons born in foreign countries.**39~259A.** Voluntary adoption registry for providing limited access to birth information ofadult adoptees.**39~260.** Registration of deaths and stillbirths. 39·260A. [Repealed.[**39~261.** Induced abortion reporting forms

- Compilations. 39-262. Registration ofmarriage

- Marriage certificates filed.**39~263.** Marriage license fees. 39-264. IRepealed.1**39~265.** Registration of divorces

- Annulments ofmarriage.**39~266.** Fee for court clerk. 39-267. Delayed registration. 39-268. Authorization for final disposition.**39~269.** Disinterment

- Rules. 39-270. Disclosure ofinformation. 39-271. Records ofinstitutions.**39~272.** Duties to provide information.**39~273.** Penalties. 39-274. Evidentiary character ofrecords and copies ofrecords. 39-275. Applicahility. 39-276. Uniformity ofinterpretation.