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H0733..............................................by ENVIRONMENTAL AFFAIRS AIR QUALITY - HAZARDOUS WASTE - RECORDS - Adds to and amends existing law to provide for access to air quality and hazardous waste records and to provide for protection of trade secrets, to clarify that fines may be imposed per day per violation and to provide for availability of records. 02/17 House intro - 1st rdg - to printing 02/18 Rpt prt - to Env Aff 02/25 Rpt out - rec d/p - to 2nd rdg 02/26 2nd rdg - to 3rd rdg 03/02 3rd rdg - PASSED - 69-1-0 AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Bivens, Black(15), Black(23), Boe, Bruneel, Callister, Campbell, Chase, Clark, Crane, Crow, Cuddy, Deal, Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes, Gould, Hadley, Hansen, Henbest, Hornbeck, Jaquet, Jones(9), Jones(22), Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander, Kunz, Lake, Linford, Loertscher, Mader, Marley, McKague, Meyer, Miller, Mortensen, Newcomb, Pischner, Pomeroy, Reynolds, Richman, Ridinger, Robison, Sali, Schaefer, Stevenson, Stone, Stubbs, Taylor, Tilman, Tippets, Trail, Watson, Wheeler, Wood, Zimmermann, Mr Speaker NAYS -- Stoicheff Absent and excused -- None Floor Sponsor - Stubbs Title apvd - to Senate 03/03 Senate intro - 1st rdg - to Health/Wel 03/06 Rpt out - rec d/p - to 2nd rdg 03/09 2nd rdg - to 3rd rdg 03/16 3rd rdg - PASSED - 25-5-5 AYES--Andreason, Boatright, Bunderson, Cameron, Crow, Danielson, Darrington, Deide, Frasure, Geddes, Hansen, Hawkins, Ingram, Keough, King, McLaughlin, Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Thorne, Twiggs, Wheeler NAYS--Burtenshaw, Dunklin, Noh, Stennett, Whitworth Absent and excused--Branch, Ipsen, Lee, Sorensen, Sweeney Floor Sponsor - Bunderson Title apvd - to House 03/17 To enrol 03/17 Rpt enrol - Sp signed 03/18 Pres signed - to Governor 03/19 Governor signed Session Law Chapter 125 Effective: 03/19/98
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 733 BY ENVIRONMENTAL AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO PUBLIC WRITINGS AND ENVIRONMENTAL PROTECTION; AMENDING CHAPTER 3, 3 TITLE 9, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 9-342A, IDAHO CODE, 4 TO PROVIDE FOR ACCESS TO AIR QUALITY AND HAZARDOUS WASTE RECORDS AND TO 5 PROVIDE FOR PROTECTION OF TRADE SECRETS; AMENDING SECTION 39-111, IDAHO 6 CODE, TO PROVIDE FOR AVAILABILITY OF RECORDS; AMENDING SECTION 39-117, 7 IDAHO CODE, TO CLARIFY THAT FINES CAN BE IMPOSED PER DAY PER VIOLATION; 8 AMENDING SECTION 39-4411, IDAHO CODE, TO PROVIDE FOR AVAILABILITY OF 9 RECORDS; AND DECLARING AN EMERGENCY. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Chapter 3, Title 9, Idaho Code, be, and the same is 12 hereby amended by the addition thereto of a NEW SECTION , to be 13 known and designated as Section 9-342A, Idaho Code, and to read as follows: 14 9-342A. ACCESS TO AIR QUALITY AND HAZARDOUS WASTE RECORDS; PROTECTION OF 15 TRADE SECRETS. (1) To the extent required by the federal clean air act and the 16 resource conservation and recovery act for state primacy over any delegated or 17 authorized programs, even if the record is otherwise exempt from disclosure 18 under section 9-340, Idaho Code, any person may inspect and copy: 19 (a) Air pollution emission data; 20 (b) The content of any title V operating permit; 21 (c ) The name and address of any applicant or permittee for a hazardous 22 waste treatment, storage, or disposal facility permit pursuant to chapter 23 44, title 39, Idaho Code; and 24 (d) Any other record required to be provided to or obtained by the 25 department of health and welfare, division of environmental quality pursu- 26 ant to the federal clean air act and the resource conservation and recov- 27 ery act, and the implementing state statutes, federal regulations and 28 state rules, unless the record is a trade secret. 29 (2) For purposes of this section, a record, or a portion of the record, 30 is a "trade secret" if the information contained in the record is a trade 31 secret within the meaning of the Idaho trade secrets act, sections 48-801, et 32 seq., Idaho Code, including commercial or financial information which, if dis- 33 closed, could cause substantial competitive harm to the person from whom the 34 record was obtained. 35 (3) Any record, or portion of a record, provided to or obtained by the 36 department of health and welfare, division of environmental quality and iden- 37 tified by the person providing the record as a trade secret shall not be dis- 38 closed to the public and shall be kept confidential according to the proce- 39 dures established in this section. 40 (4) Nothing in this section shall be construed as limiting the disclosure 41 of a trade secret by the department of health and welfare, division of envi- 42 ronmental quality: 43 (a) To any officer, employee, or authorized representative of the state 2 1 or the United States, under a continuing claim of confidentiality, as nec- 2 essary to carry out the provisions of state or federal law, or when rele- 3 vant to any proceeding thereunder; 4 (b) As determined necessary by the administrator of the division of envi- 5 ronmental quality (under a continuing confidentiality claim) to protect 6 the public health and safety from imminent and substantial endangerment; 7 (c) As required by state or federal law, including section 9-343(3), 8 Idaho Code, under a continuing claim of confidentiality and subsection 9 (1), of this section; or 10 (d) With the consent of the person from whom the record is obtained. 11 (5) It shall be the responsibility of any person providing a record to 12 the department of health and welfare, division of environmental quality to 13 give notice of the existence of a trade secret on each page or other portion 14 of information at the time of submittal and such person shall have the burden 15 of demonstrating that the information is a trade secret. 16 (6) Notwithstanding the time frames set forth in section 9-339(1), Idaho 17 Code, when a request is made to the department of health and welfare, division 18 of environmental quality pursuant to the provisions of this chapter for the 19 disclosure of information for which a trade secret claim has been made, and 20 the information has not been demonstrated to be a trade secret to the satis- 21 faction of the administrator of the division of environmental quality, within 22 three (3) working days of receipt of the request for the disclosure of the 23 information the division of environmental quality shall provide a written 24 request for substantiation to the person making the confidentiality claim. A 25 response shall be submitted to the division of environmental quality by the 26 person claiming the trade secret protection within ten (10) working days after 27 receipt of the request for substantiation or the information subject to the 28 claim shall be disclosed without further notice. Upon receipt of a timely 29 response to the request for substantiation, the administrator of the division 30 of environmental quality shall determine whether the information is a trade 31 secret subject to protection. 32 (a) If it is determined that the information, or any portion of the 33 information, is a trade secret, within three (3) working days after 34 receipt of the response, the administrator of the division of environmen- 35 tal quality shall notify the person requesting the information that the 36 request is denied pursuant to sections 9-339(3) and (4), Idaho Code. 37 (b) If it is determined that the information, or any portion of the 38 information, is not a trade secret and is, therefore, subject to disclo- 39 sure, within three (3) working days after receipt of the response, the 40 administrator of the division of environmental quality shall inform the 41 person making the confidentiality claim of the determination. The deci- 42 sion shall be a final agency action directly appealable, de novo, to dis- 43 trict court of the county where the records or some part thereof are 44 located. An appeal contesting the decision of the administrator of the 45 division of environmental quality to release information claimed to be a 46 trade secret shall be filed within ten (10) working days from the date of 47 receipt of the written notice of decision. The information claimed to be a 48 trade secret shall not be disclosed until the period for appeal has 49 expired with no appeal being taken, or a court order has been issued find- 50 ing that the information is not a trade secret and all appeals of that 51 order have been exhausted. 52 (7) In any appeal taken pursuant to this section, the court may award 53 reasonable costs and attorney's fees to the prevailing party if it finds the 54 claim of confidentiality or the decision of the administrator of the division 55 of environmental quality to provide records was frivolously pursued. 3 1 (8) By December 31, 1998, the department of health and welfare shall 2 adopt rules which include: 3 (a) Appropriate measures to safeguard and protect against improper dis- 4 closure of trade secrets, including procedures to train all employees on 5 the proper handling of trade secrets; and 6 (b) Any other provisions necessary to carry out this section. 7 (9) As it relates to the department of health and welfare, division of 8 environmental quality, or to agents, contractors, or other representatives of 9 the division, the immunity created in section 9-346, Idaho Code, shall apply 10 only when disclosure of a trade secret is made consistent with this section. 11 SECTION 2. That Section 39-111, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 39-111. REPORTS CONTAINING INFORMATION WHICH ADVERSELY AFFECT COM-14 PETITIVE POSITIONS TO BE HELD CONFIDENTIALAVAILABILITY OF 15 RECORDS . Any records or other information furnished to the board,16 director or a designated hearing officer concerning one or more air or water17 pollution sources, which records or information, as certified by the owner or18 operator, relate to production or sales figures or to processes or production19 unique to the owner or operator or which tend to affect adversely the competi-20 tive position of such owner or operator, shall be only for the confidential21 use of the board, director and hearing officer in the administration of this22 act,department or to agents, contractors, or other representa- 23 tives of the department under any provisions of this chapter shall be 24 subject to disclosure according to chapter 3, title 9, Idaho Code. 25 SECTION 3. That Section 39-117, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 39-117. CRIMINAL VIOLATION -- PENALTY. (1) Any person who wilfully or 28 negligently violates any of the provisions of the non-air quality public 29 health or environmental protection laws or the terms of any lawful notice, 30 order, permit, standard, rule or regulation issued pursuant thereto, shall be 31 guilty of a misdemeanor and upon conviction thereof shall be punished by a 32 fine of not more than ten thousand dollars ($10,000) for each separate viola- 33 tion or one thousand dollars ($1,000) per day for continuing violations, 34 whichever is greater. 35 (2) Any person who knowingly violates any of the provisions of the air 36 quality public health or environmental protection laws or the terms of any 37 lawful notice, order, permit, standard or rule issued pursuant thereto 38 shall be guilty of a misdemeanor and upon conviction thereof, shall be 39 punished by a fine of not more than ten thousand dollars ($10,000) for40 each separate violation or for each day of a continuingper day 41 per violation. In addition, any person who knowingly releases into the 42 ambient air any hazardous air pollutant listed pursuant to section 112 of the 43 federal clean air act 42 USC 7412, or any extremely hazardous substance listed 44 pursuant to 42 USC 11002(a)(2) that is not listed under section 112, and who 45 knows at the time that he thereby places another person in imminent danger of 46 death or serious bodily injury shall, upon conviction, be punished by a fine 47 of not more than two hundred fifty thousand dollars ($250,000) per day, or by 48 imprisonment of not more than fifteen (15) years or both such fine and impris- 49 onment. Any person committing such violation which is an organization, shall, 50 upon conviction under this subsection, be subject to a fine of not more than 51 one million dollars ($1,000,000) for each violation. For any air pollutant for 4 1 which the environmental protection agency or the board of health and welfare 2 has set an emissions standard or for any source for which a permit has been 3 issued under title V of the clean air act amendments of 1990, a release of 4 such pollutant in accordance with that standard or permit shall not constitute 5 a violation of the provisions of this subsection. 6 SECTION 4. That Section 39-4411, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 39-4411. RECORDS -- REPORTING -- MONITORING. (1) Pursuant to the provi- 9 sions of section 39-4405, Idaho Code, the board shall adopt, and amend as nec- 10 essary, such rules relating to records, reporting, and monitoring as may be 11 needed to achieve the purposes of this chapter. These rules may include, but 12 shall not be limited to, prescribing procedures and requirements for: 13 (a) The establishment, maintenance, and format of records and reports; 14 (b) The submittal of records and reports; 15 (c) The taking of samples and the performing of tests and of analyses; 16 (d) The use of approved monitoring methods and techniques; 17 (e) The installation, calibration, use, and maintenance of monitoring 18 equipment; and 19 (f) The provision of relevant information to the department. 20 (2) Sixty (60) days after promulgation of the criteria and lists speci- 21 fied under section 39-4407, Idaho Code, and the rules required under section 22 39-4405, Idaho Code, and subsection (1) of this section, the generation, 23 transportation, treatment, storage, or disposal of a hazardous waste in this 24 state by any person without reporting such activity to the department as 25 required by the rules issued pursuant to subsection (1) of this section shall 26 be unlawful. 27 (3) Information obtained by the department or by agents, contractors, or 28 other representatives of the department, under any provisions of this chapter, 29 shall be available to the public, unless the information, or parts30 thereof, if made public, would divulge methods, processes, or activities con-31 stituting trade secrets, in which case the informationshall be subject 32 to disclosure according to chapter 3, title 9, Idaho Code. Nothing in33 this subsection shall be construed as limiting the disclosure of information34 by the department to any officer, employee, or authorized representative of35 the state or the United States, as necessary to carry out the provisions of36 this chapter or the provisions of RCRA. The provisions of this section shall37 not limit the department's authority to release confidential information dur-38 ing an emergency involving hazardous waste, if the director determines that39 release of the information is necessary to safeguard the public health and40 safety.41 (4) Effective January 1, 1996, each generator shall, at the discretion of 42 the director, no later than thirty (30) days after the end of each calendar 43 year submit a written annual report to the department including the following 44 information: 45 (a) The types and quantities of hazardous wastes generated; 46 (b) The types and quantities of such wastes shipped for treatment and 47 disposal by landfilling or other means of disposal; 48 (c) The types and quantities of such wastes remaining in storage at the 49 end of the reporting period; 50 (d) Whether such wastes are destined for disposal or treatment in this 51 state or whether such wastes are destined for disposal or treatment out- 52 side this state. 53 (5) Effective January 1, 1996, the operator of each commercial hazardous 5 1 waste disposal facility or site in the state shall, no later than thirty (30) 2 days after the end of each calendar year, submit a written annual report to 3 the department providing information on the types and quantities of wastes 4 received which were generated in Idaho, and information on the types and 5 quantities of wastes received which were generated in other states. 6 (6) Prior to March 1 of each year the department shall submit a report to 7 the governor and the legislature detailing the types and quantities of hazard- 8 ous wastes generated in this state, the types and quantities of such wastes 9 shipped for treatment and disposal by landfilling or other means of disposal, 10 the types and quantities of such wastes remaining in storage at the end of the 11 most recent reporting period and the types and quantities of hazardous waste 12 generated outside this state and shipped into this state for storage or dis- 13 posal. 14 SECTION 5. An emergency existing therefor, which emergency is hereby 15 declared to exist, this act shall be in full force and effect on and after its 16 passage and approval.
STATEMENT OF PURPOSE RS07999Cl To comply with the requirements established in the federal Clean Air Act and Resource Conservation and Recovery Act for a state to obtain and maintain primary authority to implement and enforce hazardous waste and air quality programs in the state. This legislation adds a subsection, Idaho Code Section 9-342A(l), to the Idaho public records statute; amends the confidentiality and public disclosure provisions of two environmental statutes, the Idaho Environmental Protection and Health Act and the Hazardous Waste Management Act of '1983; and amends the Idaho Environmental Protection and Health Act to clarify the maximum criminal penalties recoverable for certain violations of that statute. In the absence of these changes, the U.S. Environmental Protection Agency may refuse to grant or may withdraw the state's authority over air and hazardous waste programs, in which case the federal government would become the primary regulator. In addition, the legislation adds language to the Idaho public records statute, sections 9-342A(2) to (9), creating a duty to maintain the confidentiality of trade secrets submitted to the state environmental agency. The creation of this duty codifies the existing policy of the Division of Environmental Quality (DEQ) not to disclose qualifying trade secrets except under certain specifically defined circumstances. Trade secrets can be of great value and subject to legitimate property interests. consequently, the disclosure of trade secrets may result in irreversible, substantial harm to the competitive position of the person from whom the information was obtained. At the same time, the records of governmental activity and officials at all levels should generally be accessible to members of the public. The change establishes a statutory procedure for the handling of information claimed to be a trade secret. The procedure incorporates many aspects of the current practice at DEQ and the federal EPA's system of handling confidential business information. The changes retain the existing, qualified good faith immunity created in section 9-346 of the public records statute to the extent disclosure of a trade secret occurs in a manner or under circumstances consistent with the new language. The legislation requires the Department of Health and Welfare to adopt implementing rules, including appropriate measures to safeguard and protect against improper disclosure of trade secrets. FISCAL IMPACT None. CONTACT Name: Orville Green Agency: Division of Environmental Quality Phone: 373-0502 H73