T39CH44
Title 39 > T39CH44
Sections (31)
39-4401
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4401. Short title. This act may be known and cited as the Hazardous Waste Management Act of 1983. History: [39-4401, added 1983, ch. 154, sec. 1, p. 417.]
39-4402
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4402. Legislative findings and purposes. (1) The legislature of the State of Idaho finds: (a) That continuing technological progress, increases in manufacturing, and the abatement of air and water pollution have resulted in ever-increasing quantities of hazardous waste; (b) That the public health and safety, and the environment, are threatened when hazardous wastes are not managed in an environmentally sound manner; (c) That the knowledge and technology necessary for alleviating adverse health, environmental and aesthetic impacts resulting from current hazardous waste management and disposal practices are generally available; and, (d) That the problem of proper management of hazardous waste has become a matter of great statewide concern. (2) Therefore, it is hereby declared that the purposes of this act are: (a) To protect the public health and safety, the health of living organisms, and the environment from the effects of the improper, inadequate, or unsound management of hazardous waste; (b) To establish a program to track and control hazardous wastes from the time they are generated through transportation, treatment, storage, and disposal; and, (c) To assure the safe and adequate management of hazardous wastes within this state. History: [39-4402, added 1983, ch. 154, sec. 1, p. 417.]
39-4403
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4403. Definitions. As used in this chapter: (1) Board means the Idaho board of environmental quality. (2) Commercial hazardous waste facility or site means any hazardous waste facility whose primary business is the treatment, storage or disposal, for a fee or other consideration, of hazardous waste generated offsite by generators other than the owner and operator of the facility. (3) Department means the Idaho department of environmental quality. (4) Director means the director of the Idaho department of environmental quality or the director’s authorized agent. (5) Disposal means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. (6) Gate ton means the weight, in tons (2,000 pounds/ton), of waste material received at a facility. This weight does not include any subsequent changes to the weight resulting from the management of the waste by the facility. (7) Generator means any person, who by virtue of ownership, management, or control, is responsible for causing or allowing to be caused the creation of a hazardous waste. (8) Hazardous waste means a waste or combination of wastes of a solid, liquid, semisolid, or contained gaseous form which, because of its quantity, concentration or characteristics (physical, chemical or biological) may: (a) Cause or significantly contribute to an increase in deaths or an increase in serious, irreversible or incapacitating reversible illnesses; or (b) Pose a substantial threat to human health or to the environment if improperly treated, stored, disposed of, or managed. Such wastes include, but are not limited to, materials which are toxic, corrosive, ignitible, or reactive, or materials which may have mutagenic, teratogenic, or carcinogenic properties but do not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to national pollution discharge elimination system permits under the federal water pollution control act, as amended, 33 U.S.C., section 1251 et seq., or source, special nuclear, or byproduct material as defined by the atomic energy act of 1954, as amended, 42 U.S.C., section 2011 et seq. (9) Hazardous waste management means the systematic control of the collection, source separation, storage, treatment, transportation, processing, and disposal of hazardous wastes. (10) Hazardous waste facility or site means any property, structure, or ancillary equipment intended or used for the transportation, treatment, storage or disposal of hazardous wastes. (11) Injection means the subsurface emplacement of free liquids. (12) Manifest means a form used for identifying the quantity, composition, or
39-4404
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4404. Consistency with federal law. The legislature intends that the state of Idaho enact and carry out a hazardous waste program that will enable the state to assume primacy over hazardous waste control from the federal government. The legislature finds that the RCRA, as amended, 42 U.S.C., section 6901 et seq., and federal regulations adopted pursuant thereto, establish complex and detailed provisions for regulation of those who generate, transport, treat, store, and dispose of hazardous wastes. The legislature cannot conveniently or advantageously set forth in this chapter all the requirements of all of the regulations which have been or will be established under RCRA. However, by the provisions of this chapter, the legislature desires to avoid the existence of duplicative, overlapping or conflicting state and federal regulatory systems. Therefore, the board is directed to promulgate rules which are consistent with RCRA and the federal regulations adopted by the administrator of the United States environmental protection agency to implement RCRA. Farmers and ranchers who treat, store, or dispose of waste pesticides from their operations on lands owned or controlled by them shall not be required by board rules to do anything more than follow the instructions on the pesticide label and triple rinse empty containers in accordance with the RCRA regulations of the environmental protection agency. The board may not promulgate any rule that would impose conditions or requirements more stringent or broader in scope than RCRA and the RCRA regulations of the environmental protection agency. The board may, however, promulgate procedural rules and rules specifically authorized by this chapter or other state statutes without showing that those rules are required by RCRA or the regulations of the environmental protection agency; provided that those rules shall not conflict with this section, other sections of this chapter, RCRA, or the regulations of the environmental protection agency. Any rule promulgated by the board shall be valid until it is repealed or modified through the administrative process of chapter 52, title 67 , Idaho Code. History: [39-4404, added 1983, ch. 154, sec. 1, p. 419; am. 1986, ch. 182, sec. 1, p. 479; am. 1988, ch. 6, sec. 1, p. 6; am. 1988, ch. 259, sec. 1, p. 498; am. 1993, ch. 216, sec. 27, p. 608; am. 1993, ch. 291, sec. 2, p. 1085.]
39-4405
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4405. Rules in general. Pursuant to the procedures established by the Idaho administrative procedure act, chapter 52, title 67 , Idaho Code, the board shall adopt such rules as are necessary and feasible for the management of the generation, collection, transportation, treatment, storage, and disposal of hazardous wastes within the state. The board shall also adopt such rules as necessary to regulate persons who produce, burn, distribute, and market fuel containing hazardous waste. The rules promulgated by the board shall be a part of this code and shall have the force and effect of law. Such rules shall include, but not be limited to: (1) Criteria for the determination of whether any waste or combination of wastes is hazardous for the purposes of this chapter; (2) Rules for those who generate, transport, treat, store, or dispose of hazardous wastes; (3) Rules, consistent with those issued by the United States environmental protection agency and the United States department of transportation, for containerization, labeling and manifesting of hazardous wastes; (4) Rules specifying the terms and conditions under which the department shall issue, modify, suspend, revoke, or deny such permits as shall be required by this chapter; (5) Lists of those wastes or combinations of wastes which are not compatible and which may not be stored or disposed of together; (6) Procedures and requirements for the reporting of the generation, transportation, treatment, storage or disposal of hazardous wastes; (7) Rules establishing standards and procedures for the training of personnel at generation sites and at hazardous waste facilities and sites; (8) Release detection, prevention and correction rules applicable to all owners and operators of underground storage tanks, as may be necessary to protect human health and the environment; (9) Rules specifying radioactive materials or other radioactive materials occurring naturally that may be disposed of at a commercial hazardous waste facility or site. History: [39-4405, added 1983, ch. 154, sec. 1, p. 420; am. 1986, ch. 148, sec. 2, p. 418; am. 2001, ch. 297, sec. 4, p. 1076.]
39-4406
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4406. General powers and duties of director. The director: (1) Shall take all actions not inconsistent with this chapter as are necessary and feasible to enable the department to assume and continue primacy over hazardous waste management, pursuant to RCRA; (2) May conduct and publish studies of hazardous waste management in this state; (3) Shall develop, publish, and revise as necessary a plan for the safe and effective management of hazardous wastes within this state. Such a plan may identify those locations in the state which are not suitable for the establishment of hazardous waste treatment or disposal facilities or sites; (4) Shall exercise all powers and discharge all duties expressed in or implied from the other sections of this chapter. History: [39-4406, added 1983, ch. 154, sec. 1, p. 420; am. 1993, ch. 291, sec. 3, p. 1086.]
39-4407
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4407. Identification of hazardous wastes. (1) The board shall establish criteria for determining if any waste or combination of wastes is hazardous or nonhazardous, for the purposes of this chapter. (2) The board may adopt, and amend from time to time a list or lists of hazardous wastes. The board may, with public notice but without the necessity of a public hearing, list as hazardous any waste or combination of wastes determined to be hazardous by the United States environmental protection agency. To accomplish this goal, the board may adopt by reference the regulations containing the lists of hazardous wastes and the set of characteristics for identifying hazardous wastes promulgated by the United States environmental protection agency pursuant to RCRA. The board shall update the regulations adopted pursuant to this section as needed to reflect regulatory amendments promulgated by the United States environmental protection agency. The board may adopt regulations for a state hazardous waste delisting program equivalent to that set forth in 40 CFR sections 260.20(b) and 260.22. The state delisting program shall provide for public notice and opportunity for comment before granting or denying delisting requests. History: [39-4407, added 1983, ch. 154, sec. 1, p. 421; am. 1993, ch. 291, sec. 4, p. 1086.]
39-4408
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4408. Unauthorized treatment, storage, release, use or disposal of hazardous waste prohibited. (1) No person shall treat or store hazardous waste, nor shall any person discharge, incinerate, release, spill, place, or dispose any hazardous waste in such a manner that the waste, or any constituent thereof, may enter the environment, unless the department has issued said person a permit or a variance as required for the specific activity involved or exempted the activity from permit requirements. (2) Effective six (6) months after the effective date of this provision, nonhazardous liquids shall not be disposed of in a landfill for which a permit is required under section 39-4409 , Idaho Code, or which is operating pursuant to interim status granted under section 3005(c) of RCRA, unless the owner or operator of the landfill demonstrates to the director that: (a) The only reasonable alternative is placement in a landfill or unlined surface impoundment which contains or may contain hazardous waste; and (b) Placement in the owner or operator’s landfill will not present a risk of contamination of any existing or potential underground source of drinking water. (3) Waste or used oil or other material which is contaminated or mixed with any hazardous waste, other than wastes identified solely on the basis of ignitibility, shall not be used for dust suppression or road treatment. (4) The board shall have authority to prohibit: (a) Land disposal of any hazardous waste; and (b) Storage of any hazardous waste prohibited from land disposal, unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal. History: [39-4408, added 1983, ch. 154, sec. 1, p. 421; am. 1986, ch. 148, sec. 3, p. 418.]
39-4409
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4409. Permit requirements for hazardous waste treatment, storage, or disposal facilities. (1) No person shall construct, operate, or modify a hazardous waste treatment, storage, or disposal facility or site without a permit from the department. The owner or operator of the facility or site rather than the builder shall be responsible for obtaining the permit. Permits may contain such conditions necessary to protect human health and environment. The board may exempt classes or categories of hazardous waste treatment, storage, or disposal facilities from the permit requirement if the exemption is in the public interest and consistent with RCRA requirements. The fact that a class or category of such facilities is not required to obtain a federal permit shall be persuasive evidence that an exemption is in the public interest. (2) Interim status granted by RCRA or a permit issued by the United States environmental protection agency prior to the date that the state program is authorized by the administrator of that agency shall be adopted by the department as a state granted interim status or as a state granted permit until the department issues a new state permit. The board may adopt such rules and regulations as necessary to: (a) Allow other facilities to qualify for interim status; (b) Require existing interim status surface impoundments, new units, replacement of existing units and lateral expansions of existing interim status facilities to comply with all regulations which apply to new facilities; and (c) Provide for the termination of interim status. (3) The board shall promulgate rules and regulations establishing the terms and conditions for issuing permits to the described facilities and sites. The rules and regulations shall provide for, but not be limited to: (a) Standards and procedures for the safe operation and maintenance of the facilities and sites; (b) Education and training qualifications of personnel at the facilities and sites; (c) Contractual commitment or consent to each facility or site from all holders of interests in the real property committed to that facility or site; (d) Monetary assurances in such form and amount as are necessary for effective management, maintenance, and monitoring of the facilities and sites during and after operation; (e) Evidence of financial responsibility for corrective action on-site and off-site; (f) Liability insurance in such form and amount as is necessary to compensate for potential damages caused by the facilities and sites; provided, that liability insurance shall not be required in the event that liability insurance is not required by the federal regulations adopted pursuant to the RCRA; (g) Emergency equipment and emergency response plans appropriate to the facilities and sites; (h) Public participation in the permitting process consistent with 42 U.S.C. section 6974(b). (4) Permits shall be issued for a period not to exceed
39-4410
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4410. Transportation of hazardous waste. (1) The board shall promulgate hazardous waste transportation rules and regulations to control the intrastate and interstate transportation of federally regulated types and quantities of hazardous waste. The rules and regulations shall be consistent with the rules and regulations issued by the United States department of transportation and the United States environmental protection agency. The rules and regulations shall also be consistent with the rules and regulations of the Idaho public utilities commission unless such consistency would impair the primacy or the effectiveness of the state’s hazardous waste management program. In that case the board shall confer with the commission and endeavor to develop mutually acceptable transportation rules and regulations. If mutually acceptable rules and regulations cannot be developed, the board shall promulgate transportation rules and regulations that minimize conflict with the commission’s rules and regulations while assuring the primary authority and effectiveness of the state’s hazardous waste management program. Rules and regulations so promulgated by the board shall prevail over conflicting rules and regulations of the commission. (2) The hazardous waste transportation rules and regulations shall apply to all transporters of federally regulated types and quantities of hazardous waste generated either by themselves or by others. These rules and regulations shall apply to any movement of a regulated quantity of hazardous wastes to or from a hazardous waste facility or site. (3) The hazardous waste transportation rules and regulations shall provide for but not be limited to: (a) Standards for the containerization and labeling of hazardous wastes; (b) Standards for the handling and placarding of hazardous waste shipments; (c) A hazardous waste tracking system requiring that: (i) All transporters of federally regulated types and quantities of hazardous waste obtain an identification number from the department, the environmental protection agency, or another approved state program, before accepting hazardous waste for transport; (ii) All shipments of federally regulated types and quantities of hazardous waste to be shipped off site or received from off site be accompanied by a manifest or similar form describing the hazardous waste being shipped and its destination; (iii) A copy of each manifest or similar form be returned to the generator and/or originator of the shipment and a copy be retained by the transporter for a minimum of three (3) years. (4) The hazardous waste transportation rules and regulations may provide for special routing of hazardous waste shipments in this state when necessary to protect the public health, the public safety, or the environment consistent with federal statutory, regulatory and constitutional requirements. (5) No commercial hazardous waste disposal facility or s
39-4411
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4411. Records — Reporting — Monitoring. (1) Pursuant to the provisions of section 39-4405 , Idaho Code, the board shall adopt, and amend as necessary, such rules relating to records, reporting, and monitoring as may be needed to achieve the purposes of this chapter. These rules may include, but shall not be limited to, prescribing procedures and requirements for: (a) The establishment, maintenance, and format of records and reports; (b) The submittal of records and reports; (c) The taking of samples and the performing of tests and of analyses; (d) The use of approved monitoring methods and techniques; (e) The installation, calibration, use, and maintenance of monitoring equipment; and (f) The provision of relevant information to the department. (2) Sixty (60) days after promulgation of the criteria and lists specified under section 39-4407 , Idaho Code, and the rules required under section 39-4405 , Idaho Code, and subsection (1) of this section, the generation, transportation, treatment, storage, or disposal of a hazardous waste in this state by any person without reporting such activity to the department as required by the rules issued pursuant to subsection (1) of this section shall be unlawful. (3) Information obtained by the department or by agents, contractors, or other representatives of the department, under any provisions of this chapter, shall be subject to disclosure according to chapter 1, title 74 , Idaho Code. (4) Effective January 1, 1996, each generator shall, at the discretion of the director, no later than thirty (30) days after the end of each calendar year submit a written annual report to the department including the following information: (a) The types and quantities of hazardous wastes generated; (b) The types and quantities of such wastes shipped for treatment and disposal by landfilling or other means of disposal; (c) The types and quantities of such wastes remaining in storage at the end of the reporting period; (d) Whether such wastes are destined for disposal or treatment in this state or whether such wastes are destined for disposal or treatment outside this state. (5) Effective January 1, 1996, the operator of each commercial hazardous waste disposal facility or site in the state shall, no later than thirty (30) days after the end of each calendar year, submit a written annual report to the department providing information on the types and quantities of wastes received which were generated in Idaho, and information on the types and quantities of wastes received which were generated in other states. (6) Prior to March 1 of each year the department shall submit a report to the governor and the legislature detailing the types and quantities of hazardous wastes generated in this state, the types and quantities of such wastes shipped for treatment and disposal by landfilling or other means of disposal, the types and quantities of such wastes remaining in
39-4412
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4412. Inspections — Right of entry. (1) All inspections and searches 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 of the United States and article I, section 17, of the constitution of the state of Idaho. The state shall not, under the authority granted by this chapter, conduct warrantless administrative searches of private property in the absence of either consent from the property owner or occupier or exigent circumstances such as a public health or environmental emergency. (2) For the purposes of developing or enforcing any provision of this chapter or any rule or regulation authorized by this chapter, any duly authorized state employee or representative may, upon presentation of appropriate credentials, at any reasonable time: (a) Enter upon any private or public property where hazardous wastes are or have been generated, transported, treated, stored, or disposed of to inspect and to secure samples of such wastes, their containers, and their labels; (b) Enter into any aircraft, vehicle, vessel, rail car, trailer, van, or other means of conveyance where hazardous wastes are or have been contained to inspect and to secure samples of such wastes, their containers, and their labels; (c) Enter any private or public property, or means of conveyance, where records, reports, information or test results relating to the generation, transportation, treatment, storage, or disposal of hazardous wastes exist to inspect and copy such documents. (3) Upon request by an authorized agent of a property owner or facility operator, the department shall provide the property owner or facility operator with a receipt for samples taken and a copy of sample analysis. Duplicate samples shall similarly be provided upon request if the requesting party agrees to have the samples analyzed and to share the results of the analysis with the department. (4) The right of entry of a duly authorized state employee or representative shall not be subject to the waiver of any potential tort liability of the facility owner or operator. The right of entry of a duly authorized state or health district employee shall not be subject to any confidentiality requirements other than those specified in section 39-4411 (3), Idaho Code, and chapter 1, title 74 , Idaho Code. The right of entry of a private contractor working in a representative capacity for the department may, however, be made subject to additional confidentiality requirements so long as those requirements do not interfere unreasonably with the development of information by the department or the transmission of information from the contractor to the department or the United States environmental protection agency. (5) Any magistrate or district court judge is authorized to issue an administrative search warrant up
39-4413
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4413. Enforcement procedures. (A) Whenever the director determines that any person is in violation of any provision of this chapter or any permit, standard, regulation, condition, requirement, compliance agreement or order issued or promulgated pursuant to this chapter, one or more of the following actions may be taken: (1) ADMINISTRATIVE ENFORCEMENT ACTIONS. (a) Notice. The director may commence an administrative enforcement action by issuing a written notice 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 violated, and shall state the amount of civil penalty claimed for each violation. The notice of violation shall inform the person to whom it is directed of an opportunity to confer with the director or the director’s designee in a compliance conference concerning the alleged violation. A written response may be required within fifteen (15) days of receipt of the notice of violation by the person to whom it is directed. (b) Scheduling Compliance Conference. If a recipient of a notice of violation contacts the department within fifteen (15) days of the receipt of notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days of the date of receipt of notice, unless a later date is agreed upon between the parties. If a compliance conference is not requested, the director may proceed with a civil enforcement action as provided in subsection (3) of this section. (c) Compliance Conference. The compliance conference shall provide an opportunity for the recipient of a notice of violation to explain the circumstances of the alleged violation and, where appropriate, to present a proposal for remedying damage caused by the alleged violation and for assuring future compliance. If the recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision for payment of any agreed civil penalty. (d) Effect 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. (e) Failure to Reach Agreement on 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 pursuant to subsection (A)(1)(b) of this section, the director may commence and prosecute a civil enforcement actio
39-4414
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4414. Remedies. The remedies specified in this section are cumulative and nonexclusive. (1) MONETARY PENALTIES. (a) Any person who makes a false statement or representation in any application, label, manifest, record, report, permit or other document filed, maintained, or used for the purpose of complying with the provisions of this chapter shall be liable for a civil penalty not to exceed ten thousand dollars (10,000) for each separate violation or for each day of a continuing violation. (c) The imposition or computation of monetary penalties may take into account the seriousness of the violation, good faith efforts to comply with the law, and an enforceable commitment by the person against whom the penalty is directed to implement a supplemental environmental project. For purposes of this section, supplemental environmental project means a project which the person is not otherwise required to perform and which prevents pollution, reduces the amount of pollutants reaching the environment, contributes to public awareness of environmental matters, or enhances the quality of the environment. In evaluating a particular supplemental environmental project proposal, preference may be given to those projects with an environmental benefit, which relates to the violation or the objectives of the underlying statute which was violated, or which enhances the quality of the environment in the general geographic location where the violation occurred. (2) ASSESSMENT OF COSTS. Any person who violates this chapter or any permit, standard, regulation, condition, requirement, compliance agreement, or order issued or promulgated pursuant to this chapter may be assessed for: (a) The state’s costs for any nonroutine investigations, inspections, monitoring, or surveys which lead to evidence of the violation; (b) The state’s costs, including the reasonable value of attorneys’ services, for preparing and litigating the case; (c) The state’s costs for mitigating, removing, correcting or terminating adverse effects upon soil, air, or water quality resulting from the violation; (d) The state’s costs for impounding, storing, and disposing of contaminated property; (e) Compensation for damages to publicly held resources including but not limited to, land, water, recreational uses, wildlife, fish and aquatic life to restore the resource to its highest previous use; (f) Compensation for damages to privately held resources including, but not limited to, livestock, land, water, or other personal property, and compensation for court costs allowed by statute, reasonable attorney’s fees fo
39-4415
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4415. Violations constituting misdemeanors. (1) Any person who knowingly makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or used for the purpose of complying with the provisions of this chapter shall be guilty of a misdemeanor and subject to a fine of not more than ten thousand dollars (10,000) or to imprisonment not to exceed one (1) year, or to both, for each separate violation or for each day of a continuing violation. (3) An action may be commenced and prosecuted by the attorney general. The director shall not be required to initiate or prosecute an administrative or civil action before the attorney general may commence and prosecute a criminal action. History: [39-4415, added 1983, ch. 154, sec. 1, p. 428; am. 1984, ch. 54, sec. 1, p. 94.]
39-4416
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4416. Citizen suits. (1) Except as provided in subsection (2) of this section, any person who has been injured or damaged by an alleged violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter, may commence a civil action on that person’s own behalf against any person alleged to have committed the violation. A person commencing an action under this section shall be required to file a bond or equivalent security in an amount not less than one thousand dollars ($1,000) or in conformance with the requirements of rule 65(c) of the Idaho Rules of Civil Procedure if injunctive relief is sought. (2) No action may be commenced under subsection (1) of this section if the department has commenced and is diligently prosecuting an administrative, civil, or criminal action to require compliance with the law. Further, no action may be commenced under subsection (1) of this section unless the plaintiff has given the department sixty (60) days’ notice and substantial evidence of the violation upon which the citizens’ action is based. However, if the department commences an action in a court of the state of Idaho, any interested person may intervene as provided in rule 24(a) of the Idaho Rules of Civil Procedure. (3) In any action under this section, the department may intervene as a matter of right. (4) When issuing any final order in any action brought pursuant to this section, the court may award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing party, whenever the court determines such an award is appropriate, except that the state of Idaho shall not be required to pay such costs in any citizen suit where the state has become a party. (5) Nothing in this section shall restrict any right which a person, or class of persons, may have under any other statute or the common law. History: [39-4416, added 1983, ch. 154, sec. 1, p. 429; am. 1993, ch. 291, sec. 7, p. 1089.]
39-4417
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4417. Hazardous waste emergency account. (1) There is hereby created an account in the state treasury to be designated the hazardous waste emergency account. (2) The account shall consist of moneys appropriated to the account by the legislature, moneys allotted to the account as a result of departmental compliance proceedings, moneys allotted to the account in a court ordered award or judgment, moneys allotted to the account in a court approved settlement, and moneys contributed to the account from other sources. (3) Moneys in the account may be used by the director in the case of a hazardous waste emergency to pay the necessary costs of preventing, neutralizing, or mitigating any threat to the public health or safety, or to the environment caused by that emergency. (4) The board may promulgate regulations for the withdrawal and use of funds from the account as specified in subsection (3) of this section. (5) All moneys placed in the account are hereby perpetually appropriated to the department for the purposes described in subsection (3) of this section. All expenditures from the account shall be paid out in warrants drawn by the state controller upon presentation of the proper vouchers. (6) Pending use, surplus moneys in the account shall be invested by the state treasurer in the same manner as provided under section 67-1210 , Idaho Code. Interest earned on the investments shall be returned to the account. History: [39-4417, added 1983, ch. 154, sec. 1, p. 429; am. 1994, ch. 180, sec. 74, p. 476.]
39-4418
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4418. Local government notice. A permit for a new hazardous waste land disposal facility or site shall not be issued until the department has given ninety (90) days’ notice to the board of county commissioners of the county in which the proposed facility or site is to be located. History: [39-4418, added 1983, ch. 154, sec. 1, p. 430.]
39-4419
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4419. Interstate cooperation. The director shall have the power and the duty to encourage cooperative activities between the department and other states for the improved management of hazardous wastes, and so far as is practical, to provide for uniform state regulations and for interstate agreements relating to hazardous waste management. The state may enter into such agreements with other states to accomplish the purposes as set out in this chapter. History: [39-4419, added 1983, ch. 154, sec. 1, p. 430.]
39-4420
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4420. Employment security. (1) No employee of a hazardous waste generator, transporter or treatment, storage, or disposal facility or site shall be dismissed, suspended, or otherwise discriminated against because the employee testifies, provides information or otherwise assists in the enforcement or administration of the provisions of this chapter. (2) Any employer who knowingly violates the provisions of subsection (1) of this section shall be liable for damages, costs and attorneys’ fees, in addition to any other liability or relief authorized by this chapter, by any other statute, or by the common law. History: [39-4420, added 1983, ch. 154, sec. 1, p. 430.]
39-4421
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4421. Good samaritan protection. (1) Notwithstanding any provision of law to the contrary, no person who provides assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened leakage, seepage, or other release of hazardous waste, or in preventing, cleaning up, or disposing of or in attempting to prevent, clean up or dispose of any such leakage, seepage or other release, shall be subject to civil liabilities or penalties of any type. (2) The immunities provided in subsection (1) of this section above shall not apply to any person: (a) Whose act or omission caused in whole or in part such actual or threatened leakage, seepage or other release and who would otherwise be liable therefor; or (b) Who receives compensation other than reimbursement for out-of-pocket expenses for services in rendering such assistance or advice. (3) Nothing in section (1) above shall be construed to limit or otherwise affect the liability of any person for damages resulting from such person’s gross negligence, or from such person’s reckless, wanton, or intentional misconduct. History: [39-4421, added 1983, ch. 154, sec. 1, p. 430.]
39-4422
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4422. Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act. History: [39-4422, added 1983, ch. 154, sec. 1, p. 431.]
39-4423
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4423. Disposal of restricted hazardous wastes prohibited. (1) Notwithstanding any other provision of law to the contrary, no person shall discharge, deposit, inject, dump, spill, leak, or place any restricted hazardous waste, as defined in section 39-4403 , Idaho Code, into or on any land or water at a commercial hazardous waste facility or site. (2) The department may issue a variance from the requirements of subsection (1) of this section, if, in the judgment of the director, application of the requirements would cause undue hardship and the granting of the variance would not be harmful to the public interest or inconsistent with RCRA requirements. In issuing the variance, the director shall take into account: (a) The long-term uncertainties associated with land disposal; (b) The goal of managing hazardous waste in an appropriate manner in the first instance; and (c) The persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents. (3) (a) The board shall promulgate rules and regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized. (b) If such restricted hazardous waste has been treated to the level or by a method specified in regulations promulgated under this subsection, such waste or residue thereof shall not be subject to the prohibition in subsection (1) of this section and may be disposed of in a land disposal facility which meets the requirements of this chapter. History: [39-4423, added 1986, ch. 324, sec. 2, p. 797.]
39-4424
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4424. Disposal of manifested waste. Manifested waste, as that term is defined in section 39-4403 , Idaho Code, shall only be treated, stored or disposed of in this state at a permitted hazardous waste treatment, storage or disposal facility unless the burning of such manifested waste to produce heat is otherwise lawful. History: [39-4424, added 1989, ch. 253, sec. 2, p. 628.]
39-4426
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4426. Appointment of inspectors. (1) The department of environmental quality shall assign a sufficient number of employees and equipment to inspect hazardous waste facilities or sites permitted under section 39-4409 , Idaho Code, and located in Idaho where disposal of hazardous waste occurs for the purpose of assuring the protection of the health and safety of the public by monitoring the receipt and handling of hazardous wastes which have been transported by common carrier. (2) All employees of the department designated pursuant to subsection (1) of this section shall alert proper authorities or peace officers regarding violations pursuant to this chapter, violations pursuant to title 49 , Idaho Code, and violations to any rules issued pursuant to section 67-2901A , Idaho Code. (3) All actions brought for violations of the provisions of this chapter or rules promulgated pursuant thereto shall be brought as provided for in this chapter. All actions brought for violations of the provisions of title 49 , Idaho Code, shall be brought as provided in that title. History: [39-4426, added 1984, ch. 205, sec. 4, p. 507; am. 1986, ch. 231, sec. 3, p. 630; am. 1988, ch. 265, sec. 569, p. 868; am. 1999, ch. 383, sec. 1, p. 1053; am. 2001, ch. 103, sec. 46, p. 290.]
39-4427
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4427. Commercial disposal fees. (1) There is imposed on the owner or operator of every commercial hazardous waste disposal facility or site permitted under section 39-4409 , Idaho Code, the lowest applicable fee for each ton of waste or fraction thereof, as follows: (a) Thirty dollars (25.00) per gate ton or fraction thereof for all manifested wastes not otherwise defined in this subsection; (c) Two dollars (20.00) per gate ton or fraction thereof for the first two thousand five hundred (2,500) gate tons or less of wastes received by a facility or site from the same site, property or hazardous waste management unit if the wastes: (i) are PCBs regulated under Idaho or federal law and are in concentrations greater than fifty (50) parts per million; (ii) are hazardous debris; (iii) are hazardous wastes that become subject to regulation solely as a result of a removal or remedial action taken in response to environmental contamination; or (iv) are hazardous wastes that result from corrective action or closure of a regulated or nonregulated hazardous waste management unit; (e) Ten dollars (5.00) per gate ton or fraction thereof for all wastes contained in paragraph (d) of this subsection, if the wastes are received by the same facility or site and are from the same site, property or hazardous waste management unit in an amount greater than twelve thousand five hundred (12,500) gate tons up to twenty-five thousand (25,000) gate tons; (g) Two dollars and fifty cents (5.00) per gate ton or fraction thereof for all hazardous wastes that: (i) are delisted or treated so that the wastes are no longer hazardous wastes; or (ii) are nonhazardous radiologically contaminated wastes including materials from the Formerly Utilized Sites Remedial Action Program (FUSRAP) sites administered by the government of the United States; or (iii) are PCBs in concentrations less than fifty (50) parts per million and not otherwise regulated by Idaho or fe
39-4428
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4428. Collection of commercial disposal fees — Returns. (1) The fees imposed under section 39-4427 , Idaho Code, shall be due and payable in monthly installments by the owner, agent, employee, or operator of such hazardous waste facility or site and remittance shall be made to the Idaho department of environmental quality on or before the fifteenth day of the month next succeeding the end of the monthly period in which the fee accrued. The owner, operator or designated employee or agent of the hazardous waste facility or site, on or before the fifteenth day of the month, shall make out a return, upon such forms setting forth such information as the department may require, showing the amount of the fee for which the owner or operator of the hazardous waste facility or site is liable for the preceding monthly period, and shall sign and transmit the same to the department, together with a remittance for such amount in the form required. (2) The department may relieve any person or class of persons from the obligation of filing monthly returns and may require the return to cover other reporting periods, but in no event shall returns be filed for a period greater than three (3) months. History: [39-4428, added 1984, ch. 205, sec. 6, p. 508; am. 1998, ch. 229, sec. 5, p. 781; am. 1999, ch. 290, sec. 3, p. 719; am. 2001, ch. 103, sec. 47, p. 291.]
39-4429
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4429. Books and records to be preserved — Entry and inspection by department of environmental quality. Every person or entity subject to the imposition of the fees specified in section 39-4427 , Idaho Code, shall keep complete and accurate records, including itemized invoices and manifests for federally regulated types and quantities of hazardous waste ultimately disposed of at a hazardous waste facility or site in Idaho. All books, documents and papers, computer tapes, discs, and other records required to be kept by this section shall be preserved for a period of at least five (5) years from the date of the records or the date of the entries appearing in the records, unless the department in writing authorized their destruction or disposal at an earlier date. For purposes of this chapter, at any time during usual business hours, the department or duly authorized agents or employees may enter any place of business of the owner or operator of a hazardous waste facility or site where hazardous wastes are disposed and inspect the premises, the records required to be kept under this chapter, and the hazardous wastes or other chemicals contained therein to determine whether or not all the applicable provisions of sections 39-4427 and 39-4428 , Idaho Code, are being fully complied with. Trade secret information obtained by the department under the provisions of this section shall be treated in the same manner as such information obtained under section 39-4411 , Idaho Code. If the department or any of its authorized agents or employees is unreasonably denied free access or is unreasonably hindered or interfered with in making the examination of a hazardous waste facility or site, that hindrance or interference shall constitute grounds for suspension or revocation of the facility’s or the site’s permit by the director of the department of environmental quality under subsection (A)(2) of section 39-4413 , Idaho Code. History: [39-4429, added 1984, ch. 205, sec. 7, p. 508; am. 1998, ch. 229, sec. 6, p. 781; am. 1999, ch. 290, sec. 4, p. 720; am. 2001, ch. 103, sec. 48, p. 291; am. 2021, ch. 321, sec. 19, p. 964.]
39-4430
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4430. Additions and penalties. The additions, penalties, and requirements provided by the Idaho income tax act, sections 63-3046 , 63-3075 , 63-3076 and 63-3077 , Idaho Code, as they now exist or as they may be subsequently amended, shall apply in the same manner and to the same extent to this act as to the Idaho income tax act and shall cover such additions, penalties and requirements and shall, for this purpose, be described and be for acts, omissions, delinquencies, and requirements under this chapter. History: [39-4430, added 1984, ch. 205, sec. 8, p. 509.]
39-4431
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4431. Collection and enforcement. (1) The collection and enforcement procedures available to the Idaho state tax commission provided by the Idaho income tax act, sections 63-3030A , 63-3038 , 63-3039 , 63-3040 , 63-3042 through 63-3045A , 63-3047 through 63-3065A , 63-3068 , 63-3071 , 63-3072 , 63-3073 and 63-3078 , Idaho Code, as they now exist or as they may subsequently be amended, shall apply and be available to the department of environmental quality for the enforcement of the commercial disposal fee and for the assessment and collection of any amounts due thereunder. Said sections shall, for the aforementioned purposes, be considered part of this chapter and wherever liens or any other proceedings are defined as income tax liens or proceedings, they shall, when applied in enforcement or collection under this chapter, be described as commercial disposal fee liens and proceedings. (2) The department of environmental quality may be made a party defendant in any action at law or in equity by any person aggrieved by the unlawful seizure or sale of his property, or in any suit for refund or to recover an overpayment, but only the state of Idaho shall be responsible for any final judgment secured against the department of environmental quality and said judgment shall be paid or satisfied out of the general fund of the state. History: [39-4431, added 1984, ch. 205, sec. 9, p. 509; am. 1997, ch. 313, sec. 3, p. 928; am. 1999, ch. 290, sec. 5, p. 720; am. 2001, ch. 103, sec. 49, p. 292; am. 2015, ch. 244, sec. 23, p. 1021.]
39-4432
TITLE 39 HEALTH AND SAFETY CHAPTER 44 HAZARDOUS WASTE MANAGEMENT 39-4432. Distribution of commercial disposal fee revenues. The revenues received from the commercial disposal fees imposed by this chapter and any penalties, interest, or deficiency additions, shall be paid over to the state treasurer by the department to be distributed periodically but no less frequently than quarterly as follows: (1) An amount equal to ninety-five percent (95%) shall be remitted to the general fund of the state, which percentage shall be reduced to ninety-three percent (93%) in fiscal year 2013, to ninety-one percent (91%) in fiscal year 2014, to eighty-five percent (85%) in fiscal year 2015, and shall remain at eighty-five percent (85%) for each fiscal year thereafter; and (2) An amount equal to five percent (5%) shall be remitted to the county treasurer of the county where the activity occurred which caused the fees to be assessed pursuant to this chapter. Moneys returned to the county shall be utilized by the county to respond to health and environmental problems which may be caused by hazardous waste emergencies or spills, or improperly handled or packaged hazardous waste; and (3) An amount equal to one percent (1%) in fiscal year 2013, an amount equal to two percent (2%) in fiscal year 2014, and an amount equal to five percent (5%) in fiscal year 2015, and an amount equal to five percent (5%) for each fiscal year thereafter shall be remitted to the treasurer of a county highway district created pursuant to chapter 13, title 40 , Idaho Code, to maintain a road under the jurisdiction of such district that connects a rail transfer facility to a commercial hazardous waste facility affiliated with such rail transfer facility. The use of the moneys provided for in this subsection shall be used only for the maintenance, construction and repair of the road described in this subsection; and (4) An amount equal to one percent (1%) in fiscal year 2013, an amount equal to two percent (2%) in fiscal year 2014, and an amount equal to five percent (5%) in fiscal year 2015, and an amount equal to five percent (5%) for each fiscal year thereafter shall be remitted to the state highway account established in section 40-702 , Idaho Code, such amount to be utilized by the Idaho transportation department to maintain a road or roads under the state board of transportation’s jurisdiction that connects a rail transfer facility to a commercial hazardous waste facility affiliated with such rail transfer facility. The use of the moneys provided for in this subsection shall be used only for the maintenance, construction and repair of the road described in this subsection. History: [39-4432, added 1984, ch. 205, sec. 10, p. 510; am. 1989, ch. 419, sec. 1, p. 1023; am. 1997, ch. 313, sec. 4, p. 928; am. 1998, ch. 229, sec. 7, p. 782; am. 1999, ch. 290, sec. 6, p. 721; am. 2012, ch. 304, sec. 1, p. 843.]