APPENDIX XII
2007

CUMULATIVE

POCKET SUPPLEMENT

IDAHO CODE

Compiled Under the Supervision of the

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)

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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'ROTECTION DIsTRIcrs, §§ 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 ESTABLISHMENT Acr, §§ 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 of the director.

39-107D. Rules of department or board.

39~115. Pollution source permits.

39~1l6A. Compliance agreement .schedules.

39-118. Review of plene.

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 power plants - 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

outdoor atmosphere ofany dust, fume, mist, smoke, radionuclide, vapor, gas

or other gaseous fluid or particulate substance differing in composition from

or exceeding in concentration the natural components of the atmosphere.

13
39-103 HEALTH AND SAFETY 14

(2) "Air pollution" means the presence in the outdoor atmosphere of any

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 of life or property.

(3) "Board" means the board of environmental quality.

(4) "Cyanidation" means the method of extracting target precious metals

from ores by treatment with cyanide solution, which is the primary leaching

agent for extraction.

(5) "Cyanidation facility" means that portion of a new ore processing

facility, or a material modification or a material expansion ofthat portion of

an existing ore processing facility that utilizes cyanidation and is intended

to contain, treat, or dispose of cyanide containing materials including spent

ore, tailings, and process water.

(6) "Department" means the department of environmental quality.

(7) "Director" means the director of the department of environmental

quality or the director's designee.

(8) "Emission" means any controlled or uncontrolled release or discharge

into the outdoor atmosphere of any air contaminant or combination thereof.

Emission also includes any release or discharge of any air contaminant from

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 of materials from water or other 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 water supply" 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, actually used or intended for use for the purpose offurnishing water for 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,

dissolved or 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 of solid waste.

(15) "State" means the state of Idaho.

(16) "Substantive" means that· which creates, defines or regulates the

rights of any person or implements, interprets or prescribes la'?\' or policy,

but does not include.statements concerning only the internal management

ofthe department and not affecting private rights or procedures available to

the public.

(17) "Water pollution" is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the state, or such

discharge of any contaminant into the waters ofthe state as will or is 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, esthetic or other legitimate uses or to livestock, wild

animals, birds, fish or other' aquatic life.

(18) "Waters" means all accumulations of water; surface. and· underground, natural and artificial, public and private or parts thereofwhich are

wholly or partially Within, flow through or border upon.this state except for

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; am. 2005, ch. 167, § 1, p. 509.]

Compiler's Notes. Section 2 of S.L. 2005,

ch. 167 i. compiled a. § 39-118A.

39·104. Department of environmental quality Creation.

(1) There is created and established in the state government a department

of environmental quality which shall for the purposes of section 20, article

IV, ofthe constitution ofthe state ofIdaho be an eXE\cutive department ofthe

state government. The executive and administrative power of this department shall be vested in the director of the department who shall be

appointed and serve at the pleasure of the governor, with the advice and

consent of the senate.

(2) The department shall be organized in such administrative divisions 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 of the director.

(3) The INL coordinator, deputy director, regional administrators and

division administrators shall be nonclassified employees exempt'·from the

provisions of chapter 53, title 67, Idaho Code.

(4) No provision of this title shall be interpreted as to supersede,

abrogate, injure or create rights to divert or store water and apply water to

beneficial uses established under section 3, article XV ofthe constitution of

the state of Idaho and title 42, Idaho Code: Nothing in this title shall be
39-105 HEALTH AND SAFETY 16

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 or require minimum stream flows whichwould 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 § 39-104 by 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 and duties of ~he director. - The director shall have

the following powers and duties:

(1) All of the rights, pow~rs and duties regarfling environmental protection functions vested in the department of health and welfare, and its

director, administered by the division of environmental quality, including,

but notlimited 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 exercised by his predecessors in law, and shall be the successor in

law to all contractllal obligations entered into by predecessors in law. All

hearings of the director shall be governed by the provisions of chapter 52,

title 67, Idaho Code. ,.

(2) The director shall, pursuant and subject to the provisions ofthe Idaho

Code, and the provisions ofthis act, formulate and recommend 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 any purpose which may be necessary and feasible

for enforcing the provisions of this act, including, but not limited to, the

prevention, control or abatement of environmental pollution or degradation

including radionuclides and risks to public health related to anY of the

powers and duties described in this section. Any such rule 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 of the promotion and protection of the environment of

this state. The powers and duties of the director shall include, but not be

limited to, the following:

(a) The issuance oflicenaes and permits as prescribed by ll!w,and by the

rules ofthe board promulgated hereunder. For each air quality operating

permit issued under title V ofthe federal clean air act and its implement-
17 ENVIRONMENTAL QUALITY -'- HEALTH 39-105

ing regulations, the director shall, consistent with the federal clean air act

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 of the 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 pursuant to 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 of the act, 42 U.S.C. 300f, et seq. and

regulations promulgated pursuant to' the act.. This includes, but is not

limited to, the development of and implementation of a capacity development strategy to ensure public drinking water systems have the technical,

managerial and financial capability to comply with the national primary

drinking water regulations; and the enhancement of protection ofsource

waters.for public drinking water systems.

(c) .The establishment of liaison with other governmental departments,

agencies. and boards in order to effectively assist, other governmental

entities with: the planning for the control ofor abatement of environmental 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 and for limiting and controlling the emission of air 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 of rules relating to the discharge of effluent 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 of complying with the clean water act, the director may provide

an exemption from additional reductions for those nonpoint sources that

meet the applicable reductions set forth 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 of and/or abatement of

environmental pollution. '

(g) The adtninistration of solid waste disposal site and design review in

accordance with the provisions of chapter 74, title 39, Idaho Code, and

chapter 4, title 39, Idaho Code, and in particular as follows: '

(i) The issuance of a solid waste disposal site certificate in the manner

provided in chapter 74, title 39, Idaho Code.

(til Provide review and approval regarding the desigu of solid waste

disposal facilities and ground water monitoring systems and approval

of all applications for flexible standards as provided in 40 CFR 258, in

accordance with the provisions of chapter 74, title 39, Idaho Code.
39-105 HEALTH AND SAFETY 18

(iii) 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.

(h) The establishment, administration and operation of:

(i) A network of environmental monitoring stations, independent ofthe

United States department of energy, 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 of Idaho related to the operation

and environmental protection obligations ofthe Idaho national laboratory

and provide periodic information to the governor, the attorney general,

the legislature and the people of Idaho concerning compliance with such

agreements and obligations. The director shall have the power to enter

into agreements with the United States department of energy in order to

carry out the duties and authorities provided in this subsection.

(i) The enforcement of all laws, rules, regulations, codes and standards

relating to environmental protection and health.

(j) The enhancement and protection of source waters of the state pursuant to rules of the board.

(4) The director, when so designated by the governor, shall have the

power to apply for, receive on behalf ofthe state, and utilize any federal aid,

grants, gifts, gratuities, or moneys made available through the federal

government including, 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.

(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

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 thereof when 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;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's Notes."Sections 1 and 3 ofS.L.

2004, eh. 335 are compiled as chapter :24, title

54 and § 67-2601, respectively.

Section 4 of S.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 that any rule formulated and recommended by the department to 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 rulemakirig record requirements under chapter

52, title 67, Idaho Code, must clearly specify that the proposed rule, or

portions of the 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 of the 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

conducted in accordance with sound and objective seientific practices; and

(b) Data collected by accepted methods or best available 'methods if'the

reliability ofthe method and the nature of the decision justify use of the

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) Identification of each population or receptor addressed by an estimate

of public health' effects or environmental effects; and
39-115 HEALTH AND SAFETY 20

(b) Identification of the expected risk or central estimate of risk for the

specific population or receptor; and

(c) Identification of each appropriate upper bound or lower bound estimate of risk; and

(d) Identification of each significant uncertainty identified in the process

ofthe assessment ofpublic health effects or environmental effects and any

studies that would assist in resolving the uncertainty; and

(e) Identification of studies known to the department that support, are

directly relevant to, or fail to support any estimate of public health 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 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 broader in scope or more stringent than federal law or

rules, or which regulate an activity not regulated by the federal 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 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; 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 applicability ofpermit requirements for any major or

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) For purposes of a major source permit to operate issued or modified

by the department in accordance with title V ofthe federal clean air act

amendments of 1990, "regulated air pollutant" shall have the same

meaning as in title V of the federal clean air act amendments of 1990,

and any applicable federal regulations promulgated pursuant to title V

of the federal clean air act amendments of 1990;

(ii) For purposes of any other operating permit issued or modified by

the department, the federal definition of ~regulated air pollutant" as

defined in subsection (l)(b)(i) of this section shall also apply;
21 ENVIRONMENTAL QUALITY - HEALTH .39-115

. (iii) For purposes of any permit ta construct issued or modified by the

department pursuant to part D of subchapter I ofthe federal clean' air

act, "regulated air pollutaht" shall mean those air contaminants that

are regulated pursuant to part D ofsubchapter I ofthe federal clean air

act and applicable federal regulations promulgated pursuant to part D

of subchapter I of the federal clean air act; and .. ,

(iv) For purposes of major soutce compliance with 42 U.S.Go section

7412(g) and (i)(l), "regulated air pollutant" shall mean' tho5'e 'air

contaminants that are listed pursuant to 42 U.S.C. section 74'l2(b); and

.(v): For purposes ofany other major or minor permit toconstrUctissued

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

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

. . subchapter' I of the federal clean air a:ct and any, applicable federal

regulations promulgated pursuant to part C of subchap~er"I'of the

federal clean air act. ,,; : "

(c)· To determine the applicability of any permit to construct or permit 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,be inCluded only as

required by 42 U.S.C. section 7401 et seq. or any implementing regulation

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 iJi below the de minimis

level which shall not require either a permit to construct or a permit to

operate; provided however, that a registratipn of the 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 of pollution. source permits ot conditions thereofwithout

the necessity ofa prior revocation of the pennit; or .".

(b); Construction ,of an industrial or commercial' air pollution source

without a permitrequired ~der this chapter or.rules adopted hereunder.

(3),. The department is authorized to charge and collect a fee for processing

applications for industrial or commercial air pollution source pernlits in

accordance.with a fee· sphedu1e. established by the board' pursuaJit to this

, Chapter. For'fees charged for operating permits under title V of the federal

clean air act amendments of1990, the department shall not Charge·a fee on

any hazardous air pollutant other than those listed l11lder section 112 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 if the director finds:
39-116A HEALTH AND SAFETY 22

(a) The facility will not be sited in complex valley terrain where the valley

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 before January 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; 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 of regulated air pollutants. Neverthe~

less, the United States District Court for

Idaho has applied portions of rules of the

Department ofEnvironmental Quality for air

pollution in a manner which substantially

exceeds federal requirements. This act is

meant to clarify that 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, but rather a

clarification of what the existing law has

consistently meant."

Compiler's Notes. Section 1 of S.L. 2005,

ch. 324 amended this section as it read 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 of the department that such a

schedule is appropriate, given the factors listed in subsection (4) of this

section. The provisions of this 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 of this section.

(3) In establishing any compliance agreement schedule, the term of the

agreement shall not exceed ten (10) years, although successive agreements

may be entered into. Agreements shall provide for annual meetings between

the department and the person to reassess whether, considering the factors

listed in subsection (4) of this section, the schedule and other terms of the

agreement are still appropriate. All agreements must be signed by the

director or his designee and an authorized representative on behalf of the

person. All agreements are enforceable as orders under the provisions ofthis

chapter.
23 ENVIRONMENTAL QUALITY - HEALTH 39-118

(4) Agreements and schedules entered into under this act shall take into

account, in descending priority the:

(a) Protection of public health;

(b) Protection 'of environment; .

(c) Ability of the person to pay for coste of compliance;

(d) Current tiscal obligations of the 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 of S.L. 2003;

ch. 317 declared an emergency. Approved

April 24, 2003. . .

39-118. Review ofplanIi. - (1) Except as provided by subsection (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.supply systems or public water treatment systems, shall be SUblllitted

to and approved by the director before construction may begin, and all

construction shall be in 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 of submittal such that approval can be granted. If the director and

applicant have not resolved design issues within forty-two (42) days or at

any time thereafter, the applicant may file a written demand to the 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 ofall written demands for. decision made pursuant to this 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 of the 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 best management 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

qualified licensed professional 'engineer to verifycompHance with· facility

standards and approves construction plans prior to initiation of construc-
39-118 HEALTH AND SAFETY 24

tion. Any plans approved pursuant to this subsection shall be transmitted

to the director at the time construction is authorized along with a

statement that the plans comply with the facility standards and that

construction has been authorized by the public agency or public utility. At

the discretion of any city, county, quasi-municipal corporation or regulated

public utility, the plans addressed by this subsection may be referred to

the director for review and approval prior to initiation of construction.

(3) Within thirty (30) days of the completion of construction of facilities

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 performed must be submitted to the director by the

engineer representing the public agency or regulated public utility, if the

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. If construction 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) of this section and all plans approved pursuant to 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 its judgment for

that of the owner's design engineer concerning the manner of compliance

with design standards. Except with respect to plans and specifications for

facilities addressed in subsection (5) of this section, and confined animal

feeding operations, the board may require that certain types of plans and

specifications must be stamped by registered professional engineers. If the

director determines that any particular facility or category of facilities 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 of facilities.

(5) All plans and specifications for the construction, modification, expansion, or alteration of waste treatment or disposal facilities for aquaculture

facilities licensed by the department of agriculture 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 of fish 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 submitted to and approved by the director ofthe department of environmental 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 of approval or disapproval. In the event of disapproval the director

shall provide reasons for disapproval in writing to the owner or responsible

party. Plans and specifications shall conform in style and quality to 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

regulatory agencies for the industry, general public, and persons involved in

the industry to develop and update guidelines or best management practices

as needed. Within thirty (30) days of the completion of the construction,

modification, expansion or alteration offacilities subject to this subsectipn,

the owner or responsible party shall submit a statement to the director that

the construction has been completed and is in substantial compliance with

the plans and specifications as submitted and approved. The director shall

conduct an inspection within sixty (60) days ofthe date ofsubmission ofthe

statement and shall inform the owner or responsible party ofits approval of

the construction orin the event ofnonapproval, the reasonsfor nonapproval.

[I.C., § 39-U8, as added by 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 of S.L.. 2005, Idaho Code,- to assist the Department of Ench. 321 provided 'The Director ofthe Depart- vironmenlal Quality in establishing facility

ment ofEnvironmental Quality shall appoint standards and design standards for such faa committee of licensed' professional engi- cilities. Such standards shall be adopted no neers who are regularly engaged in the design later than June 30, 2006."

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

39·1ISA. Ore processing by cyanidation. - (1) All plans and specifications for the construction of a cyanidation facility 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 ofthe

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)(a) A cyanidation facility shall not be constructed, operated, or closed

prior to a permit being obtained from the department.

(b) Weather permitting, the director shall deliver to the operator within

one hundred eighty (180) days after the receipt of a complete permit

application the notice of rejection or notice of approval of the permit, as

the case may be, provided however, that, subject to the provisions of

subsection (3) of this section, if the director fails to deliver a notice of
39-1l8A HEALTH AND SAFETY 26

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

commence to build, operate or close the cyanidation facility covered by the

permit, as the case may be, as if a notice of approval of the permit had

been received from the director. Provided however, that if weather

conditions prevent the director from inspecting the cyanidation facility 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 of rules promulgated under chapter 15,

title 47, Idaho Code, the department is authorized to issue a permit under

subsection (2) of this section if the cyanidation facility has provided

financial assurance under the provisions ofIDAPA 58.01.13 in an amount

determined by the department to be the estimated reasonable costs to

complete the activities specified in the permanent closure plan required in

IDAPA 58.01.13, in the event of the failure of an operator to complete

those activities, plus ten percent (10%) of such costs. In setting the

amount of financial assurance, the department shall avoid duplication

with any financial assurance, bonds and sureties deposited with other

governmental agencies.

(b) After the effective date of rules promulgated under chapter 15, title

47, Idaho Code, the department shall not issue a permit under subsection

(2) ofthis section unless the cyanidation facility has satisfied the financial

assurance requirements of chapter 15, title 47, Idaho Code, relating to ore

processing by cyanidation.

(4) A cyanidation facility with an existing permit approved by the

department prior to July 1, 2005, shall be subject to the applicable laws and

rules for ore processing by cyanidation in effect on June 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 after January 1, 2005,

shall not be considered to be material modifications or a material expansion

of the facility.

(5) The department shall promulgate temporary rules by August 1, 2005,

to implement the provisions ofthis act; however, no rulemaking is necessary,

nor shall be required, to increase the amount offinancial assurance provided

by the department's interim authority under subsection (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's Notes. 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 of Idaho that provides for the state's

power generation needs and protects the health and safety ofthe citizens of

Idaho, and the products produced in this state. The legislature has determined that there is a need for information and study on matters such as air

and water quality impacts, effects on existing industries, and allocation of

water resources, with regard to energy development. The legislature further

finds that certain coal fired power plants may have a significant negative

impact upon the health, safety and welfare· of the population, the quality

and financial security of existing agricultural businesses andinduatries,

economic growth of the state of Idaho, and the environmental quality. and

natural resources ofthis state. To better understand.the environmental and

economic effects of certain coal fired power plants, the legislature believes it

is desirable and in the public interest to place a two (2) year moratorium

from the effective date of this 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 of S.L. 2006,

ch. 367 provided "An emergency existing

therefor, which emergency is hereby declared

to exist, this act shall be in full force and effect

on and after its passage and approval [April 7,

2006], and shall be null, void and of no force

and effect on and after two (2) calendar years

from the effective date of this act' [April 7,

2006]. Thus, this section becomes null and

void on April 7, 2008.

39-125. Moratorium on constrUction of certain coal fired power

plants - Report. [Effective until April 7, 2008.] - For two (2) years

from the effective date of this act, municipalities, counties and the department of environmental. 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, or building or air permits; provided however, that the

provisions of this act do not apply to power plants utilizing the integrated

gasification combined cycle technology where coal is not burned but oxidized

as a power source. The provisions ofthis act do not apply to coal fired power

plants owned or constructed by a public utility regulated by the public

utilities commission pursuant to title 61, Idaho Code, or by a cooperative or

a municipality, nor do the provisions ofthis act apply to the operations ofthe

Idaho national laboratory. [I.C., § 39-125, as added by 2006, 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 2 ofS.L. 2006, ch. 367 provided "An

omergency existing therefor, which emerKeney is hereby declared to exist, this act

sHallbe in full force and effect on and after its

passage and approval [April 7, 20061, and

shall be null, void and ofno force and effect on

and after two (2) calendar years from the

effective date ofthis act [April 7, 2006]. Thus,

this section becomes null and void on April 7,

2008.

39-130. Removal - Remediation - Bunker Hill mUllng and

metallurgical complex superfund facility. - Notwithstanding any
39-175 HEALTH AND SAFETY 28

other provision oflaw to the contrary, removal and remediation actions in or

related to any operable unit of the Bunker Hill mining and metallurgical

complex superfund facility performed by or on behalf of the department of

environmental quality shall not constitute public works pursuant to chapter

57, title 67, Idaho Code, chapter 19, title 54, Idaho Code, or any other

provision of Idaho Code. In the letting and oversight of contracts for such

removal or remediation actions, bonding of contractors may be required. The

administrator of the division of waste and remediation, department of

environmental quality, and the director ofthe department of environmental

quality, shall have the authority of the administrator of the division of

purchasing, department of administration, and the director of the department of administration, respectively, in requiring open competitive bidding

pursuant to sections 67-5715 through 67-5718A, 67-5725, 67-5726, 67-5729,

67-5730 and 67-5733, Idaho Code, and any relevant rules ofthe department

of administration. [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 of the state's most

valuable natural resources;

(b) That it is in the public interest to promote effective and efficient

regulation of the discharge of pollutants into navigable waters, and to

explore whether the state should control such permitting decisions as

authorized under the federal clean water act;

(c) That the clean water act allows a state to develop and implement, 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

pursuant thereto, establish complex and detailed provisions for regulation

of those who discharge pollutants into navigable waters;

(e) That a state program to implement permitting decisions as authorized

in the clean water act, and regulations adopted pursuant thereto may

enable the state to issue flexible permits consistent with the clean water

act and avoid the existence of duplicative, overlapping or conflicting state

and federal regulatory systems;

(D That a state program must be run with a minimum of federal

interference in permitting, inspection and enforcement activities 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 under the provisions ofthe national environmental

policy act. There should be no conditions of approval ofthe state program

which have the effect of undermining or circumventing this principle;

(g) That the decision to accept delegation of authority 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, it is,the intent ofthe legislature to establish requirements

that must be satisfied prior to legislative approval of a permitting program

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- ter act is codified as 33 U.S.C.S. § 1251 et seq.

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

legislature cannot conveniently or advantageously set forth in this chapter

all the requirements of all of the regulations which have been' bt will be

established under the clean' water act. However, any state permitting

program must avoid the existence of duplicative, 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 or requirements more stringent or broader in scope than

the clean water act and regulations adopted pursuant 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- ter act is codified as 33 U.s.C.S. § 1251 et seq.

39-175C. Approvalofstate NPDES program. - (1) The department

is authorized to eJqllore whether the state, should operate an NPDES

program by evaluating the.costs and benefits to the state, ofst(ch a program,

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 of a

state NPDES program by the United States environmental protection

agency. ' . , "., ,,', ,

(3) The director shan not execute a memorandum of agr!lement with the

United States environmental protection agency to bbtain NPDES prog'l'am

approval as sp!lcified und!lr section 402 of the clean wat!lr act and 40 CFR

123 until completion of any required consultation iuld issuance of any 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 of a statute. Any memorandum of agreement not authorized in the above manner shall be of no force

and effect.

(5) Implementation of a state NPDES program shan not occur prior to

statutory enactment of implem!lnting legislation and authorization of a

memorandum of agre!lment as specified in subsection (4) of this section.

(6) No provision of this chapter shall b!l int!lrpr!lted as to supersede,

abrogate, injure or create rights to divert or store water and apply water to
39-241 HEALTH AND SAFETY 30

beneficial uses established under section 3, article XV; ofthe constitution of

the state of Idaho, 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. Section 402 aftha clean 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 of pereone born in IdahoNew birth certificate issued to

replace onginal certificate -

Procedure - Adoption proceedings not open to inspec~

tiOD with certain exceptions -

Duties of the clerka of courts.

issuing adoption decrees -

SECTION.

Duties ofstate registrar of vital 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 of information.

39-277. Autopsies for suspected CreutzfeldtJakob disease..

VITAL STATISTICS ACT

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 adult who has become a parent'of a child

through'the legal process of adoption. '

(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 accredited program ofstudy 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 of an 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) "Dead body" means a lifeless human body or such parts ofthe human

body or the bones thereof from the state of which it reasonably may be

concluded that death occurred.

(7) "Director" means the director ofthe department ofhealth and we~e,

(8) "Fetal death" means death prior to the complete expulsion or extraction from its mother of a product of human conception. irrespective of the
IDAHO CODE

CONTAINING THE

GENERAL LAWS OF IDAHO

ANNOTATED

ORIGINALLY PUBLISHED BY AUTHORITY OF

LAWS 1947, CHAPTER 224

REPUBLISHED BY AUTHORITY OF

LAWS 1949, CHAPTER 167 AS AMENDED

Compiled Under the Supervision of the

Idaho Code Commission

R. DANIEL BOWEN

THOMAS A. MILLER RICHARD F. GOODSON

COMMISSIONERS

MAX M. SHEILS, JR.

EXECUTIVE SECRETARY

TITLES 38, 39 (1-43)

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PUBLISHER'S NOTE

Since the publication in 1994 of Replacement Titles 38, 39 (1-43) many

laws have been amended or repealed and many new laws have been enacted.

The resulting increase in the size of the cumulative supplement for Titles

38, 39 (1-43) has made it necessary to revise this volume. Accordingly,

Replacement Titles 38, 39 (1-43) is issued with the approval and under the

direction of the Idaho Code Commission.

To better serve our customers, by making our annotations more current,

LexisNexis has changed the sources that are read to create annotations for

this publication. Rather than waiting for cases to appear in printed

reporters, court decisions are now being read as they are released by the

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 Court and the Court ofAppeals, and the

appropriate federal courts, posted on texis. com as of March 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 of the abbreviations of the 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 of Civil Procedure

Idaho Rules of Evidence

Idaho Criminal Rules

Misdemeanor Criminal Rules

Idaho Infraction Rules

Idaho Juvenile Rules

Idaho Court Administrative 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'REATMENT Aer,

§§ 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. MAtuaNG OF 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 CONTROL Ac: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. 1DAHO ANATOM'CAL GIFTAr: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. MEDICAL CONSENT, §§ 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 feeding operations - Financial assurances.

39·104b. [Amended and Redesignated.!
39-101 HEALTH AND SAFETY 94

SECTION.

39-104c. [Repealed.]

39-105. Powers and duties of the director.

39-106. Director - Additional powers and

duties - Transfer and continuation of rules 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. Department ofenvironmental quality fund.

39~107C. Environmental protection trust

fund established.

39-107D. Rules of department or board.

39-108. Investigation - Inspection - Right

of entry - Violation - Enforcement - Penalty - Injunctions.

39-109. Commencement of civil enforcement

actions - Criminal actions

authorized - Duties of attorney general.

39-110. Registration of persons engaged in

operations or construction

where air pollution is a factor

- Reports.

39-111. Availability of records.

39-112. Emergency - Order - Hearing -

Modification, affirmance, or

setting aside.

39-113. Transfer of employees.

39-114. [Repealed.]

39-115. Pollution source permits.

39-116. Compliance schedules.

39-117. Criminal violation - Penalty.

39-118. Review of plans.

39-llBA. Ore processing by cyanidation.

SECTION.

39-118B. Relationship to federal law.

39-118C. Legislative findings and declaration of purpose.

39-ll8D. Idaho air quality permitting fund.

39-ll8E. Sman business assistance.

39-119. Collection of fees 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 - Permit processing.

39-129. Applicability - Definition of local

government and mandates -

Authorization for local government 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,

may be known and cited as the "Idaho Environmental Protection and Health

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 § 39-104a has been

repealed, § 39-104b has been transferred 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 added by 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 of use of breed name of cattle 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.

City and county hospitals, § 31-3701 et seq.

County environmental pollution control facilities, financing, §§ 31~4501 - 31-4516.

Director, duties in prevention of infant diseases and blindness, § 39-906.
95 ENVIRONMENTAL QUALITY - HEALTH 39-102

Educational institutions, title 33,

Food Establishment Act, §§ 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 of dairy 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 chapter is 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 on Actions.

Since Idaho's Environmental Protection

and Health Act (§§ 39-101- 39-130) does not

provide its own statute oflimitation, the four~

year limitation provided by § 5-224 applies to

actions brought under it. Aetna Cas. & Sur.

Co. v. Gulf Resources & Chern. Corp., 600 F.

Supp. 797 (D. Idaho 1985).

-Nuisance.

Where a complaint of nuisance is permaw

nent, the cause of action must be commenced

within four years from the date the permanent nuisance was created or occurred; where

the nuisance is temporary and continuing in

nature, the statute oflimitations does not run

and an action may be brought at any time to

recover damages occurring within the previous limitation period. Aetna Cas. & Sur. Co. v.

Gulf Resources & Chem. Corp., 600 F. Supp.

797 (0. Idaho 1985).

Nuisance Claims Not Preempted.

The Environmental Protection Act does not

preempt common law nuisance claims. Idaho

v. Bunker Hill 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.

39A C.J.S., Health and Environment, §§ 3,

7-9, 20-57.

Health ordinances as an unlawful interferw

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 of board of health to designate what

are contagious or infectious diseases. 22

A.L.R. 835.

Delegation to health officer of power to

protect the health of a city. 22 A.L.R. 835.

Arbitrary power of boards of health. 22

A.L.R. 1178.

Power of board ofhealth to prescribe means

of keeping the water supply free from impuw

rities. 23 A.L.R. 228.

Delegation to board of health of power to

regulate milk. 58 A.L.R. 672; 80 A.L.R. 1225;

101 A.L.R. 64; 110 A.L.R. 644; 119 A.L.R. 243;

155 A.L.R. 1383.

Delegation to board of health of power over

buildings. 114 A.L.R. 446.

Delegation to board of health of power to

administer a health service for municipal

employees. 126 A.L.R. 838.

Constitutional rights of owner as against

destruction of building by public authorities.

14 A.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 over paren 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 Comprehensive Environmental Response, 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 of personal health and to thereby protect and promote

the health, safety and general welfare of the people of this 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 of the
39-102A HEALTH AND 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

of degraded 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

of ground water from point and nonpoint sources of contamination 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 of the state to prevent contamination of ground water

from any source to the maximum extent practical.

b. The discovery of any contamination that poses a threat to existing or

projected future beneficial uses of ground water shall require appropriate

actions to prevent further contamination. These actions may consist of

investigation and evaluation or enforcement actions if necessary 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 conduct their activities so as to prevent

the nonregulated release of contaminants 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 of S.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 of the department of environmental

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 of environmental quality, the department

of environmental 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 of hazardous wastes and ensuring the proper cleanup and restoration of existing natural resources are vital interests of the state of Idaho;

(4) That it is in the interest of the 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 and
97 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 of Idaho 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 that this section does not require the preparation of any

economic, environmental or other statement;

(7) That the department of environmental quality shall utilize the

designated program appropriations made to the department of health and

welfare for environmental program functions, the division of environmental

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 of S.L. '.2000.

eh. 132, is compiled as *59-904.

Section 39 of S.L. 2000, eh. 132 provides:

''(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Di\'isian of EnvironmentaJ 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 of End ronmental Quality which appear in the master

rule database maintained by the coordinator.

to the Department of Environmental Quality

without further republication or promulgation. to comply with the provi~ions of this act.

L'ntil :;uch time as a republication of a rule

occurs. any reference in a rule to the Division

of Enviro~mentalQuality shall mean the Department of Environmental 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 of any dust, fume, mist, smoke, radionuclide, vapor, gas

or other gaseous fluid or particulate substance differing in composition from

or exceeding in concentration the natural components of the atmosphere.

(2) "Air pollution" means the presence in the outdoor atmosphere of any

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 of life or property.

(3) "Board" means the board of environmental quality.

(4) "Department" means the department of environmental 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 of any air contaminant or combination thereof.

Emission also includes any release or discharge of any air contaminant from
39-103 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 or other 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) "Public water supply" 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, actually used or intended for use for the purpose offurnishing water for 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.

(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 of solid waste.

(13) "State" means the state of Idaho.

(14) "Substantive" means that which creates, defines or regulates the

rights of any person or implements, interprets or prescribes law or policy,

but does not include statements concerning only the internal management

ofthe department and not affecting private rights or procedures available to

the public.

(15) "Water pollution" is such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the state, or such

discharge of any contaminant into the waters of the state as will or is 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 or other legitimate uses or to 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 or parts thereofwhich are

wholly or partially within, flow through or border upon this state except for

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 of S.L. 1992, ch. 305

provided that such § 1 would become null and

void and of nO force and effect March 1, 1993

and that § 3 of ch. 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 which is compiled as §§ 39-101- 39-103,

39-105 - 39-108, 39-110 - 39-113.

Section 2 ofS.L. 1973, ch. 143 provided that

the act should take effect on and after July 1,

1973.

Section 46 of S.L. 1974, ch. 23 is compiled

as § 37-2102.

Section 2 of S.L. 1978, ch. 45 is compiled as

§ 39-107.

Section 3 of S.L. 1989, ch. 308 is compiled

as § 39-105.

Section 2 of S.L. 1992, ch. 189 is compiled

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

Section 5 of S.L. 1992, ch. 305 read: "The

provisions ofthis act are hereby declared to be

severable and if any provision of this act or

the application of such provision to any per·

son or circumstance is declared invalid for

any reason, such declaration shall not affect

the validity ofremaining portions ofthis act."

Section 2 of S.L. 1993, ch. 267 read: "The

provisions ofthis act are hereby declared to be

severable and if any provision of this act or

the application of such provision to any per·

son or circumstance is declared invalid for

any reason, such declaration shall not affect

the validity of remaining portions of this act."

Section 2 of S.L. 1992, ch. 305 which provided for the promulgation of emergency and

permanent rules and regulations to amend

the Idaho Department of Health and Welfare

Rules and Regulations, Title 1, Chapter 1,

Rules and Regulations for the Control of Air

Pollution, consistent with that act became

effective April 8, 1992 and subsequently be·

came null and void and of no force and effect

on March I, 1993 as provided in § 6 of S.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 of this 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 of no force and effect on and after March

1, 1993. Sections 3 and 4 ofthis act shall be in

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 act shall be in full force and effect upon

approval and retroactively to March 1, 1993."

Section 39 of S.L. 2000, ch. 132 provides:

"(I) This act shall be in full force and effect on

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 of Environ~

mental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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 DeM

partment of Environmental 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

of environmental quality which shall for the purposes of section 20, article

IV, ofthe constitution ofthe state ofIdaho be an executive department ofthe

state government. The executive and administrative power of this 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 of the governor, with the advice and

consent of the senate.

(2) The department shall be organized in such administrative divisions 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 of the director.

(3) The INEEL coordinator-manager, regional administrators and division administrators shall be nonclassified employees exempt from the

provisions of chapter 53, title 67, Idaho Code.

(4) No provision of this title shall be interpreted as to supersede,

abrogate, injure or create rights to divert or store water and apply water to

beneficial uses established under section 3, article XV of the constitution of

the state of Idaho 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 or require minimum stream flows 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. and redesig. to § 39-104 by 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 nf S.L. 1973, ch.

87 were repealed, and § 9 is compiled as

§ 39-3124. Sections 7 and 10 of S.L. 1973, ch.

87 were repealing and temporary sections.

Section 2 of S.L. 1995, ch. 365 is compiled

as § 67-2402.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July I, 2000, except that the DiviM

sion of Environmental 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 ofEnviron~

mental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental 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 development oflarge swine and poultry feeding

operations which are inadequately controlled through existing state regulatory mechanisms. If not properly regulated, these facilities pose a threat

to the state's surface and ground water resources. Due to existing

rulemaking authority, the department of environmental quality is in the
101 ENVIRONMENTAL QUALITY - HEALTH 39-104A

best position of all 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 of environmental 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 permit from the department of environmental quality to construct,

operate, expand or close the facilities shall provide financial assurances

demonstrating financial capability to meet requirements for operation and

closure of the 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 of credit, 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 of closure

and remediation will be available whenever the funds are needed. The

director may retain financial assurances for up to five (5) years after closure

of a 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 of section 39-7907, Idaho Code, in addition to the

requirements ofthis chapter and the department of environmental quality's

rules regulating swine and poultry facilities, prior to the issuance of a final

permit by the director. The director shall require that swine facilities be

constructed in a phased manner over a period oftime and that no additional

facilities be constructed until the director approves the associated waste

treatment system. The director may require that poultry facilities be

constructed in a phased manner over a period oftime and that no additional

facilities be constructed until the director approves the associated waste

treatment system.

(5) Nothing in this section prohibits the boards of county commissioners

of any county or the governing body of any 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 of a county or a governing body of a city in which a

swine or poultry facility is located may choose to determine whether the

facility is properly closed according to imposed standards or may 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 of county commissioners of a county or a governing body

of a 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 by four-tenths (.4) plus the number ofweaned swine

weighing under twenty-five (25) kilograms multiplied by one-tenth (.1)

plus the number of poultry 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

management systems, and which has a one-time animal unit capacity oftwo

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 of housing 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·

tive April 12, 2000, which do not conflict and

have been compiled together.

The 2000 amendment by ch. 132, § 7, near

the middle of the last sentence in subsection

(1). deleted "of health 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 of the second

sentence in subsection (1), deleted "'department of health 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 of environmental quality" for "department of health

and welfare", at the end of the sentence,

substituted "division" for "'department", at the

beginning of the last sentence, substituted

"division" for "'department"; and added subsections (3) through (5).

This section was 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 of S.L. 2001, ch. 103 is compiled

as Chapter 1 of Title 39.

Section 15 of S.L. 2001, ch. 103 is compiled

as § 39-171.

Section 2 of S.L. 2001, ch. 350 is compiled

as § 39-7907.

Section 2 of S.L. 1999, ch. 263 declared an

emergency. Approved March 24, 1999.

Section 2 of S.L. 2000, ch. 221 declared an

emergency. Approved April 12, 2000.

Section 3 of S.L. 2001, ch. 350 declared an

emergency. Approved April 9, 2001.

Section 39 of S.L. 2000, ch. 132 provides:

<I( 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 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 of Environmental Quality
103 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

of Environmental Quality shall mean the De·

partment of Environmental 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 and duties ofthe director. - The director shall have

the following powers and duties:

(1) All of the rights, powers and duties regarding environmental protection functions vested in the department of health and welfare, and its

director, administered by the division of environmental quality, including,

but not limited 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 exercised by his predecessors in law, and shall be the successor in

law to all contractual obligations entered into by predecessors in law. All

hearings of the director shall be governed by the provisions of chapter 52,

title 67, Idaho Code.

(2) The director shall, pursuant and subject to the provisions ofthe Idaho

Code, and the provisions ofthis act, formulate and recommend 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 any purpose which may be necessary and feasible

for enforcing the provisions of this act, including, but not limited to, the

prevention, control or abatement of environmental pollution or degradation

including radionuclides and risks to public health related to any of the

powers and duties described in this section. Any such rule 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 of the promotion and protection of the environment of

this state. The powers and duties of the director shall include, but not be

limited to, the following:

(a) The issuance of licenses and permits as prescribed by law and by the

rules of the board promulgated hereunder. For each air quality operating

permit issued under title V ofthe federal clean air act and its implementing regulations, the director shall, consistent with the federal clean air act
39-105 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 of the 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 pursuant to 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 of the 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 of an operator certification

program; the development of and implementation of a capacity development strategy to ensure public drinking water systems have the technical,

managerial and financial capability to comply with the national primary

drinking water regulations; and the enhancement of protection ofsource

waters for public drinking water systems.

(c) The establishment of liaison with other governmental departments,

agencies and boards in order to effectively assist other governmental

entities with the planning for the control of or abatement of environmental 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 of air 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 of rules relating to the discharge of effluent 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 of complying with the clean water act, the director may provide

an exemption from additional reductions for those nonpoint sources that

meet the 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 of andlor abatement of

environmental pollution.

(g) The administration of solid waste disposal site and design review in

accordance with the provisions of chapter 74, title 39, Idaho Code, and

chapter 4, title 39, Idaho Code, and in particular as follows:

(i) The issuance of a 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

of all applications for fiexible standards as provided in 40 CFR 258, in

accordance with the provisions of chapter 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 of all 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 of public 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 of the board.

(4) The director, when so designated by the governor, shall have the

power to apply for, receive on behalf of the state, and utilize any federal aid,

grants, gifts, gratuities, or moneys made available through the federal

government including, 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 thereof when 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 of S.L. 1989,

ch. 308 read: "0) The legislature of the state

of Idaho 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 of plants

and animals, and other non point 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 of technical factors, including nutrient

sources, nutrient removal and use and the

ability of a 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 of the

state of Idaho from nutrient overloading.

"(2) Therefore, it 1S hereby declared that

the purposes of this 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 of S.L. 1991, ch. 332 read:

"(1) The legislature of the state of Idaho

finds:"

"( a) That the waters of Priest lake are threatened with deterioration that may endanger

that natural beauty, wildlife and fisheries

value, recreational use and economic potential of Priest lake."

"(b) That preservation and protection of

Priest lake and maintenance of the usc and

enjoyment of the lake is in the best interest of

all citizens of the state."

"(c) Recreational use of Priest lake is an im·

portant element of the 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 of this act are:"

"(al To establish a lake water quality management plan for Priest lake to maintain

existing water quality in lieu of an 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 of health and welfare

and thereafter submitted to the legislature."

Compiler's notes. Section 3 of S.L. 1988,

ch. 39 read: "The Director of the Department

of Health and Welfare shall be granted authority to appoint a Computer System Manager, who shall be exempt from the provisions

of Chapter 53, Title 67, Idaho Code."

Section 1 of S.L. 1996, ch. 323 read: "Pursuant to 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 of the Department of Health and Welfare

shall, in cooperation with other state agencies, political subdivisions and the Priest

Lake Planning Team, 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 of Chapter 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 of S.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 of S.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 are
107 ENVIRONMENTAL QUALITY - HEALTH 39-106

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

Sections 3 and 5 of 8.L. 1993, ch. 275 are

compiled as §§ 39-Il8D and 39-108, respectively.

Section 2 of 8.L. 1994, ch. 75 is compiled as

§ 39-7402.

Section 2 of 8.L. 1997. ch. 26 is compiled as

§§ 39-7601 - 39-7605.

Section 24 ofS.L. 1993, ch. 139 read: "!fany

section, subsection, sentence, clause or phrase

of this act is for any reason held to be unconstitutional, such decision shall not affect the

validity ofthe remaining portions ofthis act."

Section 4 of S.L. 1989, ch. 308 declared an

emergency. Approved April 3, 1989.

Section 4 of S.L. 1992, ch. 331 declared an

emergency. It became law without the governor's signature April 15, 1992.

Section 25 of 8.L. 1993, ch. 139 declared an

emergency. Approved March 25, 1993.

Section 39 of S.L. 2000, ch. 132 provides:

"( 1) This act shall be in full force and effect on

and after July 1, 2000, except that the Divi~

sion of Environmental 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 of Environmental 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

of Environmental Quality shall mean the De~

partment of Environmental Quality,"

Cross ref. Children's trust account board,

voting member, § 39~6001.

Children's trust account, management and

accounting of moneys 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 - Transfer and

continuation of rules and other proceedings. - (l) The director shall

exercise the following powers and duties in addition to all other powers and

duties inherent in the position:

(a) Prescribe such policies and procedures as may be necessary for the

administration of the department, the conduct and duties of the employees, the orderly and efficient management of department business, and

the custody, use and preservation of department 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 of his

duties.

(d) Prescribe the qualifications of all personnel of the department on a

nonpartisan merit basis, in accordance with the Idaho personnel system

law, provided, however, that the administrators in charge of any division

of the department shall serve at the pleasure of the director.

(e) Create such units, sections and subdivisions as are or may be

necessary for the proper and efficient functioning of the 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 environmental protection functions

vested in the department of health and welfare and its director, administered by the division of environmental 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

the judgment of the department is needful for the operation of the facilities

and programs for which it is responsible and to dispose of, by sale or
39-107 HEALTH AND SAFETY 108

exchange, any property which in the judgment of the department is not

needful for the operation of the 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 of environmental

quality heretofore adopted or issued by the [lJ department of health and

welfare and its director are transferred to the department of environmental

quality and shall remain in full force and effect until 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 department of environmental quality and its director shall be the

successor to all rights, powers and duties of the department of health 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, both effective Jnly 1, 2000, which

do not conflict and have been compiled to~

gether.

The 2000 amendment by 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 of the

section (S.L.1974, ch. 23, § 50), nor when the

section was amended in 1987 (S.L. 1987, ch.

223, § 2). However, in the amendment of the

section by § 2 of S.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 of S.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 be in full force and effect on

and after July 1, 2000, except that the Divi~

sion of Environmental 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 redesig~

nate all references to the Division of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental Quality

without further republication or promulga~

tion, to comply with the provisions ofthis act.

Until such time as a republication of a rule

occ}1rs, any reference in a rule to the Division

of Environmental Quality shall mean the Department of Environmental 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 of environmental quality shall consist ofseven (7) members who shall

be appointed by the governor, with the advice and consent ofthe senate. The
109 ENVIRONMENTAL QUALITY - HEALTH 39-107

members shall serve at the pleasure of the governor. Each member of the

board shall be a citizen ofthe United States, a resident ofthe state of Idaho,

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 of the board shall be chosen with due regard to their knowledge

and interest in solid waste; two (2) members shall be chosen for their

knowledge of and interest in air quality; two (2) members shall be chosen for

their knowledge of and interest in water quality; and one (1) member shall

be chosen with due regard for his knowledge ofand interest in air, water and

solid waste issues.

(b) The members ofthe board of environmental quality shall be 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 appointed for 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

conduct ofits business, and such meetings shall be held from time to time on

seventy-two (72) hours' notice ofthe chairman or a majority ofthe members.

Five (5) members shall be necessary to constitute a quorum at any regular

or special meeting and the action of the majority of members present shall

be the action of the board. The members of the board shall be compensated

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

(3) The board, in furtherance of its 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 of witnesses 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

the proceeding is pending, by petition, setting forth that due notice has been

given ofthe time and place of attendance ofsaid witnesses, or the production

ofsaid papers, 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 of said proceedings, and ask an order of said

court compelling the witness to attend and testify and produce said papers

before the board. The court, upon the petition of the board, shall enter an

order directing the witness to appear before the court at a time and place to

be fixed by the court in such order, the time to be not more than ten (10) days

from the date of the order, and then and there shall show cause why he has

not attended and testified or produced said papers before the board. A copy

ofsaid order shall be served upon said witness. Ifit shall appear to the court

that said subpoena was regularly issued by the board and regularly served,

the court shall thereupon order that said witness appear before the board at

the time and place fixed in said order, and testify or produce the required
39-107 HEALTH AND SAFETY 110

papers. Upon failure to obey said order, said witness shall be dealt with for

contempt of court.

(4) The director, his designee, or any party to the action may, in an

investigation or hearing before the board, cause the deposition or interrogatory ofwitnesses or parties residing within or without the state, to be taken

in the manner prescribed by law for like depositions and interrogatories in

civil actions in the district court ofthis state, and to that end may compel the

attendance of said witnesses and production of books, documents, papers

and accounts.

(5) Any person aggrieved by an action or inaction 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 of the 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 of the board at any

time and place. In any hearing, a member of the 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 of the board,

may secure judicial review by filing a petition for review as prescribed under

the provisions of chapter 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 be jurisdictional and the provisions ofthis section shall be the

exclusive procedure for appeal.

(7) The board, by the affirmative vote of four (4) of its members, may

adopt, amend or repeal the rules, codes, and standards of the department,

that are necessary and feasible in order to carry out the purposes and

provisions of this act and to enforce the laws of this 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 of the state.

(8) All rulemaking proceedings and hearings of the board shall be

governed by the provisions of chapter 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 of health and welfare pertaining to the environmental

protection functions administered by the division of environmental 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 of the board of health 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

environmental protection functions administered by the division of environmental quality.

(12) Upon creation of the board of environmental quality, all pending

business before the board of health and welfare relating to environmental

protection functions administered by the division of environmental 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's notes. For words "this act," see

Compiler's notes, § 39-103.

Section 1 of 8.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 of 8.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 of S.L. 1980, ch. 325 declared an

emergency. Approved April 2, 1980.

Section 17 of 8.L. 1972, ch. 347 provided

this act shall take effect from and after July I,

1972.

Section 39 of 8.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Divi~

sian of Environmental 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 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 of Environmental Quality

without further republication or promulga~

tion, 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

of Environmental Quality shall mean the De~

partment of Environmental 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 of law to the contrary, the department may

accept transfer from the United States of any 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 contaminant or pollutant on, or from, any such real

property. The department may, in its sole discretion, manage, lease or

dispose ofsuch property for the 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 of such

property shall be deposited in the Bunker Hill Cleanup Trust Fund

established by the Trust Fund Declaration of the state of Idaho dated May

2,1994 (Attachment M, Consent Decree, United States ofAmerica v. Asarco,

Inc. No. CV-94-0206-N-HLR (D. Idaho)) for the purpose of funding institutional control or operation and maintenance activities regarding the site.
39-107B HEALTH AND SAFETY 112

[I.C., § (39-107A) 39-107a, as added by 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 amendment by 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 of such property for

the purpose of facilitating appropriate operation and maintenance activities, encouraging

economic development of the Silver Valley 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 "Attachment N".

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 of S.L. 2000, ch. 21 declared an

emergency. Approved March 3, 2000,

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, 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 of Environmental Quality

without further republication or promulga~

tion, to comply with the provisions of this act.

Until such time as a republication of a rule

occurs, any reference in a rule to the Division

of Environmental Quality shall mean the De~

partment of Environmental Quality,"

39.107B. Department of environmental quality fund. - (1) There

is hereby created a fund in the state treasury to be known as the department

of environmental quality fund and all moneys deposited therein shall be

available to be appropriated to the department of environmental quality for

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 of the department of environmental quality shall be placed in the

fund provided that the statewide accounting and reporting system must

provide for identification of the balance of each funding source within the

fund.

(3) The state controller shall make transfers to the fund from the general

fund and any other funds appropriated to the department of environmental

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 act shall be in full force and effect on

and after July 1, 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 of Environ·

mental Quality which appear in the master

rule database maintained by the coordinator,
113 ENVIRONMENTAL QUALITY - HEALTH 39-107D

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental Quality."

39·107C. Environmental protection trust fund established. -

The director of the department of environmental quality may receive on

behalf of the 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 ofsuch property 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 out the 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. Interest received on all such investments 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 of S.L. 2000,

ch. 132, is compiled as § 39-3628.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Division of Environmental 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 of Environmental Quality

without further republication or promulgation, to comply with the provisions of this act.

Until such time as a republication of a rule

occurs, any reference in a rule to the Division

of Environmental Quality shall mean the Department of Environmental Quality."

39-107D. Rules of department or board. - (1) The legislature

directs that any rule formulated and recommended by the department to 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

of proposed rulemaking and rulemaking record requirements under chapter

52, title 67, Idaho Code, must clearly specify that the proposed rule, or

portions of the 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 of the 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 broader in scope or more stringent than federal law or

rules, or which regulate an activity not regulated by the 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 of entry - Violation

- Enforcement - Penalty - Injunctions. - (1) The director shall

cause investigations to be made upon receipt of information 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 of enforcing any provision ofthis chapter or any rule

authorized in this chapter, the director or the 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 of appropriate credentials, for the purpose of inspecting or investigating to ascertain possible violations of this 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

amendment to the constitution ofthe United States and section 17, article

I, of the constitution of the state of Idaho. The state shall not, under the

authority granted by this chapter, conduct warrantless searches of private

property in the absence of either consent from the property owner or

occupier or exigent circumstances such as a public health or environmental emergency;

Cd) Any district court in and for the county in which the subject property

is located is authorized to issue a search warrant to the director upon a

showing of(i) probable cause to suspect a violation, or (ii) the existence of

a reasonable program ofinspection. Any search warrant issued under the

authority ofthis chapter shall be limited in scope to the specific purposes

for which it is issued and shall state with specificity the manner and the

scope of the search authorized.

(3) Whenever the director determines that any person is in violation of

any provision of this act or any rule, permit or order issued or promulgated

pursuant to this act, the director may commence either of the following:

(a) Administrative Enforcement Action.

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

action by issuing a written notice of violation. The notice of violation

shall identify the alleged violation with specificity, shall specify each

provision of the act, rule, regulation, permit or order which has been
115 ENVIRONMENTAL QUALITY - HEALTH 39-108

violated, and shall state the amount of civil penalty claimed for each

violation. The notice of violation shall inform the person to whom it is

directed of an opportunity to confer with the director or the director's

designee in a compliance conference concerning the alleged violation. A

written response may be required within fifteen (15) days of receipt of

the notice of violation by the person to whom it is directed.

(iD Scheduling compliance conference. If a recipient of a notice of

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

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

The conference shall be held within twenty (20) days of the date of

receipt of the notice; unless a later date is agreed upon between the

parties. If a compliance conference is not requested, the director may

proceed with a civil enforcement action as provided in paragraph (b) of

this subsection.

(iii) Compliance conference. The compliance conference shall provide

an opportunity for the recipient of a notice of violation to explain the

circumstances of the alleged violation and, where appropriate, to

present a proposal for remedying damage caused by the alleged violation and assuring future compliance.

(iv) Consent order. If the recipient and the director agree on a plan to

remedy damage caused by the alleged violation and to assure future

compliance, they may enter into a consent order formalizing their

agreement. The consent order may include a provision providing for

payment of any agreed civil penalty.

(v) Effect of consent order. A consent order shall be effective immediately upon signing by both parties and shall preclude any civil enforcement action for the same alleged violation. If a party does not comply

with the terms of the consent order, the director may seek and obtain,

in any appropriate district court, specific performance of the consent

order and such other relief as authorized in this chapter.

(vi) Failure to reach consent order. If the parties cannot reach agreement on a consent order within sixty (60) days after the receipt of the

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) of this section.

(b) Civil enforcement action. The director may initiate a civil enforcement

action through the attorney general as provided in section 39-109, Idaho

Code. Civil enforcement actions shall be commenced and prosecuted in the

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

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

any provision of this act or any rule, permit or order which has become

effective pursuant to this act. Such action may be brought to compel

compliance with any provision ofthis act or with any rule, permit or order

promulgated hereunder and for any relief or 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 of any provision ofthis chapter or a violation of any rule, permit or
39-108 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 of the 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) per violation 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 of recovery of said 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 of the state. Parties to an administrative enforcement action may agree to a civil penalty as provided in this

subsection.

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

account the seriousness of the violation, good faith efforts to comply with

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

penalty is directed to implement a supplemental environmental project.

For purposes ofthis section, "supplemental environmental project" means

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

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

enhances the quality of the environment. In evaluating a particular

supplemental environmental project proposal, preference may be given to

those projects with an environmental benefit which relate to the violation

or the objectives of the 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 of this 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 of environmental degradation, cause ofsickness, or health hazard.

(7) No action taken pursuant to the provisions ofthis act or of any 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 of this act, in

circumstances of emergency creating conditions of imminent and substantial danger to the public health or environment, the prosecuting attorney or

the attorney general may institute a civil action for an immediate injunction

to halt any discharge, emission or other activity in violation of provisions of

this act or rules, permits and orders promulgated thereunder. 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. For words "this act," see

Compiler\; notes.*39·101.

Section 1 of 8.1. 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 of 8.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 effect on

and after .July 1, 2000. except that the Division of Environmental 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental Quality

without further republication or promulgation, to comply with the provisions of this act.

Until such time as a republication of a rule

occurs, any reference in a rule to the Division

of Environmental Quality shall mean the Department of Environmental 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 of Health & Welfare v. Southfork

Lumber Co., 123 Idabo 146, 845 P.2d 564

(1993).

-Award,

The legislature has made it clear that an

award of expenses 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 of costs 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 of limitation, the fouryear limitation provided by

*5·224 applies to

actions brought under it. Aetna Cas. & Sur.

Co. v. Gulf Resources & 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 of civil 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 of this 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

of the 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 effect on

and after July 1, 2000, except that the Divi·

sian of Environmental Quality shall have one
39-110 HEALTH AND SAFETY 118

(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 of Environmental 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 of Environmental 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 of persons 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 of reports by them with the

department relating to locations, size of outlet, height of outlet, rate and

period of emission and composition of eflluent, and such other information

as the director shall prescribe relative to air pollution. [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 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental Quality

without further republication or promulga·

tion, 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

of Environmental Quality shall mean the De M

partment of Environmental Quality. n

39-111. Availability of records. - Any records or other information

furnished to the board, department or to agents, contractors, or other

representatives ofthe department under any provisions ofthis chapter shall

be subject to disclosure according to chapter 3, 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

effect July 1, 1993 and that §§ 1, 2, 46 and 47

should take effect July 1, 1990.

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

§ 39-101.

Sections 53 and 55 of S.L. 1974, ch. 23 are

compiled as §§ 39-109 and 39-114.

Section 7 of S.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 of S.L. 1998, ch. 125 are

compiled as §§ 9M342A and 39-117, respecM

tively.

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

emergency. Approved March 19, 1998

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 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

of Chapter 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 of Environmental Quality

without further republication or promulgatioD, 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 of Environmental Quality."

39-112. Emergency - Order - Hearing - Modification, affirmance, or setting aside. - (1) Any other provision oflaw to the contrary

notwithstanding, if the director finds that a generalized condition of air

pollution exists and that it 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 of the 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 of air 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 of such hearing, and without adjournment

thereof, the director shall affirm, modify or set aside it~ order.

(2) In the absence of a generalized condition of air pollution of the type

referred to in subsection (1) of this section, if the director finds that

emissions from the operation of one (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

district court to immediately restrain any person causing or contributing to

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 or welfare or the environment by commencement

ofsuch civil action, the director may order the person or persons responsible

for the operation or operations in question to reduce or discontinue emissions immediately without regard to other provisions of this act. In such

event, the requirements for hearing and affirmance, modification or setting

aside of an order set forth in subsection (1) of this section shall apply. For

purposes ofsubsections (1) and (2) ofthis section, imminent and substantial

endangerment or danger shall be interpreted no more broadly than these

words are interpreted under section 303 of the clean air act, 42 USC 7603.

(3) Nothing in this section shall be construed to limit any power which

the governor or any other officer may have to declare an emergency and act

on the basis of such declaration, if such 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's Dotes. For words "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 of title 39, respectively.

Section 39 of S.L. 2000, ch. 132 provides:

"( 1) This act shall be in full force and effect on

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

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 of Environmental 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

of Environmental Quality shall mean the Department of Environmental Quality."

39-113. Transfer of employees. - All employees of the division of

environmental quality and the INEEL oversight program ofthe department

of health and welfare are transferred to the department of environmental

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), the group insurance plan (chapter 12, title

59, Idaho Code), or personnel system (chapter 53, title 67, Idaho Code).

Additionally, when the department of health and welfare is used in terms of

environmental protection, it shall mean the department of environmental

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 be in full force and effect on

and after July 1, 2000, except that the Division of Environmental 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental Quality."

39-114. Administrator, department or board of health now deemed

director, department or board of health 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 of the 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 thereof without

the necessity of a prior revocation of the permit; or

(b) Construction of an industrial or commercial air pollution source

without a permit required under this chapter or rules adopted hereunder.
121 ENVIRONMENTAL QUALITY - HEALTH 39-116

(3) The department is authorized to charge and collect a fee for processing

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 of the federal

clean air act amendments of 1990, the department shall not charge a fee on

any hazardous air pollutant other than 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) The facility will not be sited in complex valley terrain where the valley

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 before January 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 of the Federal Clean Air Act,

referred to in this section, is compiled as 42

U.S.C. § 7412 et seq.

Section 1 of S.L. 1987, ch. 198 is compiled

as §§ 39·6201 - 39-6216.

Sections 5 and 7 of S.L. 1993, ch. 275 are

compiled as §§ 39~l08 and 39-117, respectively.

Section 2 of S.L. 1973, ch. 138 read: "The

provisions ofthis act are hereby declared to be

severable and if any provisions of this 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 of remaining portions ofthis act.'"

Section 3 of S.L. 1973, ch. 138 declared an

emergency. Approved March 15, 1973.

Section 3 of S.L. 1987, ch. 198 declared an

emergency. Approved March 31, 1987.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Division of Environmental 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental 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

any health hazard, air contaminant, water pollution or solid waste for which

regulatory standards have been established, including regulatory standards
39-117 HEALTH AND SAFETY 122

then in effect or to become effective at a future date or at future successive

dates. The purpose of any compliance schedule order shall be to identify and

establish appropriate acts and time schedules for interim actions by those

persons who are or who will be affected by regulatory standards, such acts

and schedules being desigued to assure timely compliance by those affected

by the regulatory standards. Prior to the issuance of a compliance schedule

order, the director shall solicit the cooperation of the person to whom the

compliance schedule order will be directed by providing the person notice

that identifies with reasonable specificity the applicable statutes and rules,

the events or occurrences that necessitate the order, and the proposed terms

ofthe order and that informs the person that a conference with the director

to discuss the proposed terms of the order shall be provided if requested

within fifteen (15) days of receipt of the notice. If requested, the director

shall confer with the person and shall solicit the person's cooperation in the

selection of the terms of the 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

order entered pursuant to section 39-108, Idaho Code, except the order may

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 or its desiguated hearing

officer issues a stay of the 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 by S.L. 1972, ch. 347, § 14,

p.l017.

Section 58 of S.L. 1974, ch. 23 is compiled

as § 39-118.

Section 6 of S.L. 1986, ch. 60 is compiled as

§ 39-11l.

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

as § 39-118.

Section 2 of S.L. 1973, ch. 139 declared an

emergency. Approved March 15, 1973.

Section 39 of S.L. 2000, ch. 132 provides:

"(I) This act shall be in full force and effect on

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

of Chapter 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 of Environmental Quality

without further republication or promulgaw

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 of Environmental 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 of any 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 of not 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 of the provisions of the air

quality public health or environmental protection laws or the terms of any

lawful notice, order, permit, standard or rule issued pursuant thereto shall

be guilty of a 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 any hazardous air pollutant listed pursuant to section 112 of the federal

clean air act 42 USC 7412, or any extremely hazardous substance listed

pursuant to 42 USC 11002(a)(2) that is not listed under section 112, and who

knows at the time that he thereby places another person in imminent

danger of death or serious bodily injury shall, upon conviction, be punished

by a fine ofnot more than two hundred fifty thousand dollars ($250,000) per

day, or by imprisonment of not more than fifteen (15) years or both such fine

and imprisonment. Any person committing such violation which is an

organization, shall, upon conviction under this subsection, be subject to a

fine of not more 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 or for any source

for which a permit has been issued under title V of the clean air act

amendments of 1990, a release of such pollutant in accordance with that

standard or permit shall not constitute a violation of the provisions of this

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 of S.L. 1993, ch. 275 are

compiled as §§ 39~115 and 39-llBE, respectively.

Sections 2 and 4 of S.L. 1998, ch. 125 are

compiled as §§ 39·111 and 39·4411, respectively.

Section 2 of S.L. 1973, ch. 137 declared an

emergency. Approved March 15, 1973.

Section 5 of S.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 of plans. - (1) Except as provided for dairy systems

pursuant to section 37-401, Idaho Code, all plans and specifications for the

construction of new sewage systems, sewage treatment plants or systems,

other waste treatment or disposal facilities, public water supply systems or

public water treatment systems or for 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 approved plans and specifications without the prior approval

of the director. Within thirty (30) days of the completion of construction,

alteration, or modification of any new sewage systems, sewage treatment

plants or systems, other waste treatment or disposal 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. If construction
39-118 HEALTH AND 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) of this section, and confined animal

feeding operations, the board may require that certain types of plans 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 of facilities.

(3) All plans and specifications for the construction, modification, expansion, or alteration of waste treatment or disposal facilities for aquaculture

facilities licensed by the department of agriculture 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 of fish 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 of environmental 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 of submittal and notify the owner or responsible

party of approval or disapproval. In the event of disapproval the director

shall provide reasons for disapproval in writing to the owner or responsible

party. Plans and specifications shall conform in style and quality to 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

regulatory agencies for the industry, general public, and persons involved in

the industry to develop and update guidelines or best management practices

as needed. Within thirty (30) days of the completion of the construction,

modification, expansion or alteration of facilities subject to this subsection,

the owner or responsible party shall submit a statement to the director that

the construction has been completed and is in substantial compliance with

the plans and specifications as submitted and approved. The director shall

conduct an inspection within sixty (60) days ofthe date ofsubmission ofthe

statement and shall inform the owner or responsible party ofits approval of

the construction or in the event ofnonapproval, the reasons for nonapproval.

[I.C., § 39-118, as added by 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 of S,L. 1974, ch. 23 are

compiled as §§ 39~116 and 39-269.

Sections 24 and 26 of S.L. 2000, ch. 132, is

compiled as §§ 39-116 and 39-118D.

Section 2 of S.L. 1973, ch. 136 declared an

emergency. Approved March 15, 1973.

Section 2 of S.L. 1976. ch. 116 declared an

emergency. Approved March 16, 1976.
125 ENVIRONMENTAL QUALITY - HEALTH 39-118A

Section 2 of S.L. 1996, ch. 80 declared an

emergency. Approved March 6, 1996.

Section 182 ofS.L. 1974, ch. 23 provided the

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 act shall 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the De~

partment of Environmental Quality."

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

in § 22-4905.

Denial of Pennit.

Where homeowners failed to show that they

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 reasonably available. 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 ofthat part of a new ore-processing facility, or

for modification or expansion to an existing ore-processing facility, that is

intended to contain, treat, or dispose process water or process-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 of an 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,

or closed prior to a permit being obtained from the department. The director

may require a reasonable fee for processing permit applications, and

financial assurance for permanent closure of a new ore-processing facility, 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 owner or operator using 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 of S.L. 1987,

ch. 356 declared an emergency. Approved

April 6, 1987.
39-118B HEALTH AND SAFETY 126

39·118B. Relationship to federal law. - The board may promulgate

rules and regulations to ensure that the state ofIdaho is in compliance with

the provisions of the 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 of the state of Idaho under

title V of the clean air act to provide for an operating permit program for

sources of air pollution within the state.

(2) The purpose of these amendments to the environmental protection

and health act is to meet the state's obligation to protect air quality with a

cost-effective operating permit program.

(3) The legislature intends that the department's regulation under title V

of the clean air act shall take advantage of the flexibility authorized by the

federal clean air act to establish reasonable and cost-effective requirements.

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 of pollutants listed under section 112 of the

federal clean air act (to the extent that the operating permits address

hazardous air pollutants);

(d) Provisions for operating permits to be issued for fixed terms offive (5)

years; provided that, in order to facilitate the implementation of the title

V operating permit program, the director may issue operating permits

with terms offrom three (3) to five (5) years during the first three (3) years

following environmental protection agency approval of Idaho's title V

operating permit program so long as those permits with fixed terms ofless

than five (5) years are renewed with terms offive (5) years thereafter; and

provided further that if the maximum operating permit term under the

federal clean air act should be extended beyond five (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; and
127 ENVIRONMENTAL QUALITY - HEALTH 39-119

(f) Provisions allowing an existing source to make changes that reduce

emissions without applying for a permit to 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 of environmental quality and shall be paid into

the Idaho air quality permitting fund which is hereby created in 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 of the 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 permit program required under title V

of the federal clean air act amendments of 1990 shall be paid out of the 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 of S.L. 1993, ch. 275 is compiled

as § 39·105.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Division of Environmental 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental 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 of S,L. 1993,

ch, 275 is compiled as § 39-117.

39-119.

ronmental

Collection of fees for services. - The department of enviquality is hereby authorized to charge and collect reasonable
39-120 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 of S.L. 1975, ch. 182 declared an

emergency. Approved March 27, 1975.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

and after July 1, 2000, except that the Divi~

sian of Environmental 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

of Chapter 52, Title 67, Idaho Code, the Ad·

ministrative Rules Coordinator shall redesignate all references to the Division of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental 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 of water resources has the responsibility to maintain the natural resource geographic information system for

the state and is the collector of baseline data for the state's water resources,

that the department of environmental quality has the responsibility for

collecting and monitoring data for water quality management purposes and

that the department of agriculture is responsible for regulating the use of

pesticides and fertilizers and for licensing applicators, the department of

environmental quality, the department of water resources and the department of agriculture shall:

(a) Develop a ground water monitoring plan, concurrently with the

development of a ground water quality plan, for development and administration of a comprehensive ground water quality monitoring network,

including point of use, point of contamination and problem assessment

monitoring sites across the state and the assessment of ambient ground

water quality utilizing, to the greatest degree possible, collection and

coordination of existing 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 or boards should adopt rules which

specify the general standards for determining actions necessary to prevent

ground water contamination and cleanup actions necessary to meet the

goals of the state.

(4) The director of the department of environmental quality may develop

and recommend for approval by the board through rulemaking, ambient

ground water quality standards for contaminants for which the administra-
129 ENVIRONMENTAL QUALITY - HEALTH 39-121

tor of the United States environmental protection agency has established

drinking water maximum contaminant levels. The director may develop 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 of the 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

pursuing this goal, the departments and public health 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 of S.L. 1989. ch. 421 is compiled

as § 39·102.

Section 2 of S.L. 1990, eh. 151 is compiled

as § 39-123.

Section 39 of S.L. 2000, eh. 132 provides:

"( 1) This act shall be in full force and effect on

and after July 1, 2000, except that the Division of Environmental 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 of Environmental Quality which appear in the master

rule database maintained by the coordinator,

to the Department of Em'ironmenta] Quality

without further republication or promulgation, to comply with the provisions of this act.

Until such time a;; a republication of a rule

occurs, any reference in a rule to the Division

of Environmental Qualit.v shall mean the D~­

partment of Em'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 of humans or the removal or

treatment of a contaminant in ground water through management practice

or the construction of barriers, trenches and other similar facilities for

prevention of contamination, as well as the use of natural 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 or indirect introduction into ground

water of any contaminant caused in whole or in part by human activities.

(4) "Ground water" means any water of the state which occurs beneath

the surface of the earth in a saturated geological formation of rock or soil.
39-122 HEALTH AND SAFETY 130

(5) "Ground water quality plan" or "ground water quality protection plan"

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 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 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 of Environmental Quality

without further republication or promulga~

tion, 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

of Environmental Quality shall mean the De~

partment of Environmental Quality."

39-122 - 39-125. Ground water quality 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 incorporate the adopted ground water quality protection

plan in the administration oftheir programs 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 ground water quality protection plan

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 of the 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 department of agriculture and the department of

water resources in disseminating public information and education materials concerning the use and protection of ground water quality, in collecting

ground water quality management data, and in conducting research on

technologies to prevent or remedy contamination of ground 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 of the state issues a permit or license
131 ENVIRONMENTAL QUALITY - HEALTH 39-127

which deals with the environment, the entity issuing the permit or license

shall take into account the effect the permitted or licensed activity will have

on the ground water quality ofthe state and it may attach conditions to the

permit or license in order to mitigate potential or actual adverse effects from

the permitted or licensed activity on the ground water quality of the state.

Nothing contained in 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, if a permit or license which deals with the environment is required to

be obtained from a state agency and that agency considers the effect of the

permitted or licensed activity on ground water quality, after notice to other

units of government which may otherwise have regulatory authority over

the activity which is the subject of the permit or license, a city, county or

other political subdivision ofthe state shall not prohibit, limit or otherwise

condition the rights ofthe permittee or licensee under the permit or license

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 or other political subdivisions ofthe state to regulate ground water

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 of S.L. 2000, ch. 132, is compiled

as § 39-129.

Section 39 of S.L. 2000, ch. 132 provides:

"(1) This act shall be in full force and effect on

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 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 of Environmental Quality

without further republication or promulga·

tion, 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

of Environmental Quality shall mean the Department of Environmental 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

registered under the federal insecticide, fungicide, rodenticide act according

to label requirements, including precautionary statements, of the u.s.

environmental protection agency, and such application of the 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 of S.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 HEALTH AND SAFETY 132

Section 3 of S.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 of rules - Establishment

of zones - Combustor charging composition and recordkeeping -

Report to local government - Permit processing. - 1. Except as

provided in subsection 2 of this section, the provisions of this 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 adjacent properties and owned or operated by the same

person or persons under common control shall be considered in determining

the maximum rated capacity of a combustor.

2. The department is hereby directed to develop and propose, and the

board is hereby directed to adopt, rules and regulations controlling emissions of air 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 of the counties of Bannock, 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

conflict with the purposes ofthis act, or any rule, regulation, permit or order

issued or promulgated pursuant to this act.

5. For any combustor constructed or modified after the date of enactment

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 owner or operator of a combustor constructed and operated prior to

the date of enactment of this section shall, by October 1, 1992, notify the

department in writing describing the type, location and maximum rated

capacity of the combustor.

7. Any person who owns or operates a combustor shall keep records as to

the source, weight and type of material charged, and whether the material

was generated within or outside the zone in which the combustor is located.

These records shall be maintained for a period of not less than five (5) years

and shall be made available to the department upon request. The requirements of this subsection may be fully or partially waived by the director if

the owner or operator certifies to the department that no material generated

outside the zone shall be charged into the combustor.

8. Any person proposing to construct or modify a combustor shall provide,

in writing, to the local government a comprehensive report which shall

include:
133 ENVIRONMENTAL QUALITY - HEALTH 39-128

a. An overall description of the project;

b. The amount, type and disposal method of all solid waste produced;

c. The amount and content of any liquid to be discharged into the sewer

system, applied to the land, or discharged into an impoundment or pond;

d. The amount, type and control of air emissions;

e. The effect of the facility on vehicular traffic;

f. The amount of noise produced by the facility;

g. The extent and control of odors from the facility; and

h. Any additional information requested, in writing, by the local government pertaining 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 of the 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 and place ofthe hearing, a briefsummary ofthe proposal,

and the location of the comprehensive report required by the provisions of

subsection 8 of this section, shall be published in a newspaper of general

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 of the combustor is in conformance with local planning and

zoning ordinances and that all necessary local, 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 of approval or conditional approval shall be

incomplete.

11. The director shall have authority to sue in competent courts to enjoin

any threatened or continuing violation of the provisions of this section, or

any rule, regulation, permit or order issued or promulgated to implement

the provisions of this section. The court shall grant injunctive relief upon a

showing that a violation of the provisions of this section or any rule,

regulation, permit or order implementing the provisions of this 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 combustor is located in excess ofthe

amount specified in subsection 5 of this 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 of this 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 government for the city in

which the combustor is to be located or, if the combustor is to be located

outside the limits of an 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 of S.L. 1992,

ch. 189 read: "(1) The legislature of the State

of Idaho finds:

"(al Maintaining the air quality ofthe state of

Idaho to protect human health and the environment is a paramount concern and respon~

sibility of the legislature.

"(b) Due to the diminishing capacity of landfills nationwide and the increased costs of

waste disposal, the amount of medical 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 of an 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 of the state

and a fair share of the need of other states.

"(h) The amount of medical waste currently

brought into or sent out oflarge regions ofthe

state for purposes of combustion is negligible,

and reasonable requirements controlling the

combustion of these materials generated out~

side of large regions of the state will not

adversely affect industry or commerce inside

or outside large regions of the state.

"(i) The effective local management ofsewage,

drinking water, traffic, health protection, and

other local government concerns is dependent

on the thorough knowledge ofall the projected

impacts of a proposed medical waste combus~

tor proposed within the jurisdiction of a local

government.

"(2) Therefore, it is hereby declared that the

purposes of this 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 of the state to those generated within the region plus a reasonable por~

tion of these 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 of a 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 of S,L. 1992, ch. 189 is compiled

as § 39·103.

39-129. Applicability - Definition of local government and mandates - Authorization for local government agreements - Adoption of rules - Establishment of schedules - Priority of considerations - Report and recommendations. - (1) The provisions of this

section shall apply to local governments providing drinking water, municipal waste disposal, municipal sewage or waste water disposal or treatment,

or air pollution abatement, which can demonstrate to the satisfaction ofthe

department that increasing and cumulative regulatory requirements applicable to such services cannot be met in a timely and reasonable manner. The

provisions of the section do not apply where prohibited by federal or state
135 ENVIRONMENTAL QUALITY - HEALTH 39-130

laws or regulations for the protection ofhuman health and the environment.

(2) For purposes of this 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 subsequent regulations administered by the United States environmental protection agency.

(3) The department is hereby authorized to enter into agreements with

local governments. The agreement may include a binding schedule enforceable under this 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 of this section.

(5) In establishing any local government agreement 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 of the city or county commissioners

of the county, as appropriate. All agreements are enforceable as orders

under the provisions of this chapter.

(6) Agreements and schedules entered into under this act shall take into

account, in descending priority the:

(a) Protection of public health;

(b) Protection of the environment;

(c) Current tax structure and rates as compared to other local governments;

(d) Ability of the local government to pay for costs of compliance;

(e) Current fiscal obligations of the 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 act shall be in full force and effect on

and after July I, 2000, except that the Divi·

sian of Environmental 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 of Environmental Quality which appear in the master

role database maintained by the coordinator,

to the Department of Environmental 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

of Environmental Quality shall mean the Department of Environmental 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

of S.L. 1996, ch. 26, effective July 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 of the

state ofldaho finds that:

(1) Wood and mill yard debris is a byproduct of wood processing and

manufacturing; and

(2) Ifproperly managed, wood and mill yard debris can be put to uses that

have economic and environmental benefits; and

(3) There is a need for guidance about how to manage, store, use or

dispose of wood and mill yard debris so that nuisance and adverse environmental impacts are minimized; and

(4) This guidance will enable the department and local units of government to more effectively regulate the use or disposal of wood 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 of wood and

mill yard debris by requiring the director of the department of environmental 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 effective July 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 of S.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. - For purposes 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 of environmental quality.

(3) "Wood or mill yard debris" means solid wood, bark, or wood fiber

generated from the process of manufacturing wood products that may
137 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 effective July 1, 1996, purported to enact

a new section of chapter 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 of mill yard or wood debris. This committee shall consist of

seven (7) individuals and shall include:

(1) One (1) representative of the department of environmental quality,

who will provide administrative and other support to the committee.

(2) Two (2) representatives of the 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 of the 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 of the director.

Members ofthe committee shall serve without compensation pursuant to

section 59·509(a), Idaho Code. [I.C., § [39-173J 39-168, as added by 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 effective July I, 1996, purported to enact

a new section of chapter 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 provided by the manual may be incorporated or adopted by reference in

the rules of the 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 legislation related to the use, storage, management or disposal ofwood or mill yard

debris.

The committee shall meet at least two (2) times a year at a time and place

most convenient to the majority of members. [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 effective July 1, 1996, purported to enact

a new section of chapter 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 of S.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 of director.

39-243. State registrar of vital 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 of certificates and local

records.

39~250. Completion and correction of certificates - Procedure - Other

alterations prohibited.

39~251. Compensation of local registrars.

39~252. Fee for copies, searches and other

services.

39~253. Accounting for fees.

39~254. Payment of fees to local registration

officers.

39~255. Registration of births.

39~256. Registration of foundlings.

39~257. Marriage of natural parents of person born in Idaho - Judicial

determination of parentage of

person born in Idaho - New

birth certificates - Procedure.

39-258. Adoption of persons born in Idaho -

SECTION.

New birth certificate issued to

replace original certificate -

Procedure - Adoption proceedings not open to inspection with certain exceptions -

Duties of the clerks of courts

issuing adoption decrees -

Duties of state 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 of adult adoptees.

39~260. Registration of deaths and stillbirths.

39·260A. [Repealed.[

39~261. Induced abortion reporting forms -

Compilations.

39-262. Registration of marriage - Marriage

certificates filed.

39~263. Marriage license fees.

39-264. IRepealed.1

39~265. Registration of divorces - Annulments of marriage.

39~266. Fee for court clerk.

39-267. Delayed registration.

39-268. Authorization for final disposition.

39~269. Disinterment - Rules.

39-270. Disclosure of information.

39-271. Records of institutions.

39~272. Duties to provide information.

39~273. Penalties.

39-274. Evidentiary character of records and

copies of records.

39-275. Applicahility.

39-276. Uniformity of interpretation.