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H0772..............................................by ENVIRONMENTAL AFFAIRS ENVIRONMENTAL QUALITY - Amends, adds to and repeals existing law to create a Department of Environmental Quality and to repeal the Board of Health and Welfare. 02/25 House intro - 1st rdg - to printing 02/26 Rpt prt - to Env Aff 03/03 Rpt out - to Gen Ord 03/04 Returned to Env Aff
H0772|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 772 BY ENVIRONMENTAL AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 67-2402, 3 IDAHO CODE, TO ADD THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO THE EXECU- 4 TIVE BRANCH OF IDAHO STATE GOVERNMENT; AMENDING SECTION 67-2406, IDAHO 5 CODE, TO CREATE THE POSITION OF DIRECTOR OF THE DEPARTMENT OF ENVIRONMEN- 6 TAL QUALITY; AMENDING SECTION 59-904, IDAHO CODE, TO PROVIDE FOR APPOINT- 7 MENT OF A DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE 8 DEPARTMENT OF HEALTH AND WELFARE TO SERVE AT THE PLEASURE OF THE GOVERNOR 9 AND TO DELETE REFERENCE TO THE BOARD OF HEALTH AND WELFARE; AMENDING CHAP- 10 TER 1, TITLE 39, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 39-102a, 11 IDAHO CODE, TO PROVIDE LEGISLATIVE INTENT IN CREATING A DEPARTMENT OF 12 ENVIRONMENTAL QUALITY; AMENDING SECTION 39-103, IDAHO CODE, TO REVISE DEF- 13 INITIONS, TO MAKE TECHNICAL CORRECTIONS AND TO ALPHABETIZE DEFINITIONS; 14 AMENDING SECTION 39-104, IDAHO CODE, TO CREATE A DEPARTMENT OF ENVIRONMEN- 15 TAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 39-105, 16 IDAHO CODE, TO PROVIDE DUTIES OF THE DIRECTOR OF ENVIRONMENTAL QUALITY AND 17 TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTIONS 39-106 AND 39-107, IDAHO 18 CODE, TO PROVIDE ADDITIONAL POWERS AND DUTIES OF THE DIRECTOR OF THE 19 DEPARTMENT OF ENVIRONMENTAL QUALITY, TO PROVIDE FOR TRANSFER AND CONTINUA- 20 TION OF RULES AND OTHER PROCEEDINGS FROM THE DEPARTMENT OF HEALTH AND WEL- 21 FARE AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 39-107a, IDAHO 22 CODE, TO PROVIDE A CORRECT REFERENCE; AMENDING CHAPTER 1, TITLE 39, IDAHO 23 CODE, BY THE ADDITION OF A NEW SECTION 39-107b, IDAHO CODE, TO CREATE A 24 DEPARTMENT OF ENVIRONMENT FUND; AMENDING CHAPTER 1, TITLE 39, IDAHO CODE, 25 BY THE ADDITION OF A NEW SECTION 39-107c, IDAHO CODE, TO CREATE THE 26 DEPARTMENT OF ENVIRONMENT TRUST FUND; AMENDING SECTION 39-108, IDAHO 27 CODE, TO PROVIDE AND REVISE POWERS OF THE DIRECTOR OF THE DEPARTMENT OF 28 ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 29 39-109, IDAHO CODE, TO PROVIDE FOR COMMENCEMENT OF CIVIL ENFORCEMENT 30 ACTIONS BY THE DIRECTOR; AMENDING SECTION 39-110, IDAHO CODE, TO PROVIDE 31 FOR REGISTRATION OF PERSONS ENGAGED IN OPERATIONS OR CONSTRUCTION WHERE 32 AIR POLLUTION IS A FACTOR AND TO REQUIRE REPORTS TO THE DIRECTOR OF THE 33 DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 39-111, IDAHO CODE, 34 TO PROVIDE FOR REPORTS TO THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL 35 QUALITY AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-112, IDAHO 36 CODE, TO PROVIDE FOR EMERGENCY ORDERS BY THE DIRECTOR OF THE DEPARTMENT OF 37 ENVIRONMENTAL QUALITY AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 38 39-113, IDAHO CODE, TO PROVIDE FOR TRANSFER OF EMPLOYEES TO THE DEPART- 39 MENT OF ENVIRONMENTAL QUALITY; REPEALING SECTION 39-114, IDAHO CODE; 40 AMENDING SECTION 39-115, IDAHO CODE, TO PROVIDE FOR ENFORCEMENT OF POLLU- 41 TION SOURCE PERMITS BY THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL 42 QUALITY AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-116, IDAHO 43 CODE, TO PROVIDE FOR COMPLIANCE SCHEDULES TO BE ADMINISTERED AND ENFORCED 44 BY THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SEC- 45 TION 39-118, IDAHO CODE, TO PROVIDE FOR REVIEW OF PLANS BY THE DIRECTOR OF 46 ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 2 1 39-118B, IDAHO CODE, TO PROVIDE FOR PROMULGATION OF RULES BY THE DIRECTOR 2 OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO MAKE A TECHNICAL CORREC- 3 TION; AMENDING SECTION 39-118D, IDAHO CODE, TO PROVIDE FOR CERTAIN FEES TO 4 BE FORWARDED TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 5 39-119, IDAHO CODE, TO PROVIDE FOR COLLECTION OF FEES FOR SERVICES BY THE 6 DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 39-120, IDAHO CODE, 7 TO PROVIDE AGENCY RESPONSIBILITIES OF THE DEPARTMENT OF ENVIRONMENTAL 8 QUALITY; AMENDING SECTION 39-121, IDAHO CODE, TO REVISE DEFINITIONS; 9 REPEALING SECTIONS 39-122, 39-123, 39-124 AND 39-125, IDAHO CODE; AMENDING 10 SECTION 39-126, IDAHO CODE, TO PROVIDE COOPERATION WITH THE DEPARTMENT OF 11 ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 12 39-128, IDAHO CODE, TO PROVIDE FOR RULES REGARDING AIR CONTAMINATION BY 13 THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; 14 AMENDING SECTION 39-129, IDAHO CODE, TO PROVIDE FOR ADOPTION OF RULES BY 15 THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO DELETE CERTAIN RESPONSIBIL- 16 ITIES GRANTED TO THE DEPARTMENT OF HEALTH AND WELFARE; AMENDING SECTION 17 39-417, IDAHO CODE, TO PROVIDE A CORRECT CITATION AND TO DELETE REFERENCE 18 TO THE BOARD OF HEALTH AND WELFARE; AMENDING SECTION 42-202B, IDAHO CODE, 19 TO PROVIDE A CORRECT CITATION; AMENDING SECTION 50-1328, IDAHO CODE, TO 20 PROVIDE THAT THE DEPARTMENT OF ENVIRONMENTAL QUALITY MAY ADOPT RULES FOR 21 THE ADMINISTRATION AND ENFORCEMENT OF SANITARY RESTRICTION AND TO PROVIDE 22 A CORRECT CITATION; AMENDING SECTION 57-1701, IDAHO CODE, TO DELETE A CODE 23 CITATION; AMENDING TITLE 56, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 24 10, TITLE 56, IDAHO CODE, TO DEFINE TERMS, TO PROVIDE FOR THE CREATION OF 25 THE DEPARTMENT OF HEALTH AND WELFARE, TO PROVIDE POWERS AND DUTIES OF THE 26 DIRECTOR OF THE DEPARTMENT OF HEALTH AND WELFARE, TO PROVIDE ADDITIONAL 27 POWERS AND DUTIES TO THE DIRECTOR, TO PROVIDE FOR INVESTIGATIONS, INSPEC- 28 TIONS, RIGHTS OF ENTRY, PENALTIES AND INJUNCTIONS, TO PROVIDE FOR COM- 29 MENCEMENT OF CIVIL ENFORCEMENT ACTIONS AND TO AUTHORIZE CRIMINAL ACTIONS 30 BE PROSECUTED AND TO PROVIDE DUTIES, TO PROVIDE FOR THE MEANING OF THE 31 WORDS BOARD OF HEALTH AND WELFARE OR BOARD OF HEALTH, TO PROVIDE FOR COM- 32 PLIANCE SCHEDULES, TO PROVIDE FEES AND TO PROVIDE PENALTIES; AMENDING SEC- 33 TION 39-166, IDAHO CODE, AS ADDED BY SECTION 1, CHAPTER 204, LAWS OF 1996, 34 TO REDESIGNATE THE SECTION AND TO CHANGE REFERENCES FROM THE DEPARTMENT OF 35 HEALTH AND WELFARE TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AND AMEND- 36 ING SECTION 39-167, IDAHO CODE, AS ADDED BY SECTION 2, CHAPTER 204, LAWS 37 OF 1996, TO REDESIGNATE THE SECTION AND TO CHANGE REFERENCES FROM THE 38 DEPARTMENT OF HEALTH AND WELFARE TO THE DEPARTMENT OF ENVIRONMENTAL QUAL- 39 ITY. 40 Be It Enacted by the Legislature of the State of Idaho: 41 SECTION 1. That Section 67-2402, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 67-2402. STRUCTURE OF THE EXECUTIVE BRANCH OF IDAHO STATE GOVERNMENT. (1) 44 Pursuant to section 20, article IV, Idaho constitution, all executive and 45 administrative offices, agencies, and instrumentalities of the executive 46 department of state, except for those assigned to the elected constitutional 47 officers, are allocated among and within the following departments: 48 Department of administration 49 Department of agriculture 50 Department of commerce 51 Department of correction 52 Department of environmental quality 3 1 Department of labor 2 Department of finance 3 Department of fish and game 4 Department of health and welfare 5 Department of insurance 6 Department of juvenile corrections 7 Idaho transportation department 8 Industrial commission 9 Department of lands 10 Department of law enforcement 11 Department of parks and recreation 12 Department of revenue and taxation 13 Department of self-governing agencies 14 Department of water resources 15 State board of education 16 The public school districts of Idaho, having condemnation authority, shall 17 be considered civil departments of state government for the purpose of and 18 limited to the purchase of state endowment land at appraised prices. 19 (2) The governor, lieutenant governor, secretary of state, state control- 20 ler, state treasurer, attorney general and superintendent of public instruc- 21 tion each heads a constitutional office. 22 (3) For its internal structure, unless specifically provided otherwise, 23 each department shall adhere to the following standard terms: 24 (a) The principal unit of a department is a division. Each division shall 25 be headed by an administrator. The administrator of any division shall be 26 exempt from the provisions of chapter 53, title 67, Idaho Code. 27 (b) The principal unit of a division is a bureau. Each bureau shall be 28 headed by a chief. 29 (c) The principal unit of a bureau is a section. Each section shall be 30 headed by a supervisor. 31 SECTION 2. That Section 67-2406, Idaho Code, be, and the same is hereby 32 amended to read as follows: 33 67-2406. DIRECTORS OF DEPARTMENTS ENUMERATED. The following department 34 directors are created: 35 Director, department of administration 36 Director, department of agriculture 37 Director, department of commerce 38 Director, department of correction 39 Director, department of environmental quality 40 Director, department of labor 41 Director, department of finance 42 Director, department of fish and game 43 Director, department of health and welfare 44 Director, department of insurance 45 Director, department of juvenile corrections 46 Director, Idaho transportation department 47 Director, department of lands 48 Director, department of law enforcement 49 Director, department of parks and recreation 50 Director, department of water resources. 51 SECTION 3. That Section 59-904, Idaho Code, be, and the same is hereby 52 amended to read as follows: 4 1 59-904. STATE OFFICES -- VACANCIES, HOW FILLED AND CONFIRMED. (a) All 2 vacancies in any state office, and in the supreme and district courts, unless 3 otherwise provided for by law, shall be filled by appointment by the governor. 4 Appointments to fill vacancies pursuant to this section shall be made as pro- 5 vided in subsections (b), (c), (d), (e), and (f) of this section, subject to 6 the limitations prescribed in those subsections. 7 (b) Nominations and appointments to fill vacancies occurring in the 8 office of lieutenant governor, state controller, state treasurer, superintend- 9 ent of public instruction, attorney general and secretary of state shall be 10 made by the governor, subject to the advice and consent of the senate, for the 11 balance of the term of office to which the predecessor of the person appointed 12 was elected. 13 (c) Nominations and appointments to and vacancies in the following listed 14 offices shall be made or filled by the governor subject to the advice and con- 15 sent of the senate for the terms prescribed by law, or in case such terms are 16 not prescribed by law, then to serve at the pleasure of the governor: 17 Director of the department of administration, 18 Director of the department of finance, 19 Director of the department of insurance, 20 Director, department of agriculture, 21 Director of the department of labor, 22 Director of the department of water resources, 23 Director of the department of law enforcement, 24 Director of the department of commerce, 25 Director of the department of juvenile corrections, 26 Director of the department of health and welfare, 27 Director of the department of environmental quality, 28 The state historic preservation officer, 29 Manager of the state insurance fund, 30 Member of the state tax commission, 31 Members of the board of regents of the university of Idaho and the state 32 board of education, 33 Members of the Idaho water resources board, 34 Members of the state fish and game commission, 35 Members of the Idaho transportation board, 36Members of the state board of health and welfare,37 Members of the board of directors of state parks and recreation, 38 Members of the board of correction, 39 Members of the industrial commission, 40 Members of the Idaho public utilities commission, 41 Members of the Idaho personnel commission, 42 Members of the board of directors of the Idaho state retirement system. 43 (d) Appointments made by the state board of land commissioners to the 44 office of director, department of lands, and appointments to fill vacancies 45 occurring in those offices shall be submitted by the president of the state 46 board of land commissioners to the senate for the advice and consent of the 47 senate in accordance with the procedure prescribed in this section. 48 (e) Appointments made pursuant to this section while the senate is in 49 session shall be submitted to the senate forthwith for the advice and consent 50 of that body. The appointment so made and submitted shall not be effective 51 until the approval of the senate has been recorded in the journal of the sen- 52 ate. Appointments made pursuant to this section while the senate is not in 53 session shall be effective until the appointment has been submitted to the 54 senate for the advice and consent of the senate. Should the senate adjourn 55 without granting its consent to such an interim appointment the appointment 5 1 shall thereupon become void and a vacancy in the office to which the appoint- 2 ment was made shall exist. 3 All appointments made pursuant to subsection (c) of this section, except 4 those appointments for which a term of office is fixed by law, shall terminate 5 at the expiration of any gubernatorial term. Appointments to fill the vacan- 6 cies thus created by the expiration of the term of office of the governor 7 shall be forthwith submitted to the senate for the advice and consent of that 8 body, and when so submitted shall be as expeditiously considered as possible. 9 Upon receipt of an appointment in the senate for the purpose of securing 10 the advice and consent of the senate, the appointment shall be referred by the 11 presiding officer to the appropriate committee of the senate for consideration 12 and report prior to action thereon by the full senate. 13 (f) It is the intent of the legislature that the provisions of this sec- 14 tion as amended by this act shall not apply to appointments which have been 15 made prior to the effective date of this act. It is the further intent of the 16 legislature that the provisions of this section shall apply to the offices 17 listed in this section and to any office created by law or executive order 18 which succeeds to the powers, duties, responsibilities and authorities of any 19 of the offices listed in subsections (c) and (d) of this section. 20 SECTION 4. That Chapter 1, Title 39, Idaho Code, be, and the same is 21 hereby amended by the addition thereto of a NEW SECTION , to be 22 known and designated as Section 39-102a, Idaho Code, and to read as follows: 23 39-102a. LEGISLATIVE INTENT IN CREATING DEPARTMENT OF ENVIRONMENTAL QUAL- 24 ITY. The legislature finds and declares that: 25 (1) The creation and establishment of the department of environmental 26 quality to protect health and environment as its sole mission is in the 27 public's interest; 28 (2) That all rights, powers, duties, budgets, funds, contracts, rulemak- 29 ing proceedings, administrative proceedings, contested cases, civil actions, 30 and other matters relating to environmental protection as described in this 31 chapter, now vested in the director of the department of health and welfare 32 and the board of health and welfare, shall be transferred to the department of 33 environmental quality and its director as described herein effective July 1, 34 1998; 35 (3) That protecting environmental values including, but not limited to, 36 clean air, water and soil, reducing or eliminating environmental pollution 37 arising from human activities, ensuring the proper treatment, storage and dis- 38 posal of hazardous wastes and ensuring the proper cleanup and restoration of 39 existing natural resources are vital interests of the state of Idaho; 40 (4) That it is in the interest of the state and its citizens to establish 41 a department of environmental quality to carry out programs to protect human 42 health and the environment, to enforce environmental laws and to develop vol- 43 untary programs for environmental compliance; 44 (5) That the goals to protect human health and the environment can be 45 best achieved by vesting responsibility for environmental protection in a sin- 46 gle state department which has as its sole mission protection for human health 47 and the environment for the state of Idaho and its residents; and 48 (6) That the department of environmental quality shall utilize the desig- 49 nated program appropriations made to the department of health and welfare for 50 environmental program functions, the division of environmental quality and the 51 INEEL oversight program, for fiscal year 1999. 52 SECTION 5. That Section 39-103, Idaho Code, be, and the same is hereby 6 1 amended to read as follows: 2 39-103. DEFINITIONS. Whenever used or referred to in this act, unless a 3 different meaning clearly appears from the context, the following terms shall 4 have the following meanings: 51. "Board" means the board of health and welfare.6 (1) "Air contaminant" or "air contamination" means the presence in 7 the outdoor atmosphere of any dust, fume, mist, smoke, vapor, gas or other 8 gaseous fluid or particulate substance differing in composition from or 9 exceeding in concentration the natural components of the atmosphere. 10 (2) "Air pollution" means the presence in the outdoor atmosphere of 11 any contaminant or combination thereof in such quantity of such nature and 12 duration and under such conditions as would be injurious to human health or 13 welfare, to animal or plant life, or to property, or to interfere unreasonably 14 with the enjoyment of life or property. 152.(3) "Department" means the department of 16health and welfareenvironmental quality . 173.(4) "Director" means the director of the 18 department ofhealth and welfareenvironmental quality or 19 the director's designee . 204. "State" means the state of Idaho.215. "Air contaminant" or "air contamination" means the presence in the22outdoor atmosphere of any dust, fume, mist, smoke, vapor, gas or other gaseous23fluid or particulate substance differing in composition from or exceeding in24concentration the natural components of the atmosphere.256. "Air pollution" means the presence in the outdoor atmosphere of any26contaminant or combination thereof in such quantity of such nature and dura-27tion and under such conditions as would be injurious to human health or wel-28fare, to animal or plant life, or to property, or to interfere unreasonably29with the enjoyment of life or property.307.(5) "Emission" means any controlled or uncon- 31 trolled release or discharge into the outdoor atmosphere of any air contami- 32 nant or combination thereof. Emission also includes any release or discharge 33 of any air contaminant from a stack, vent or other means into the outdoor 34 atmosphere that originates from an emission unit. 358. "Water pollution" is such alteration of the physical, thermal,36chemical, biological or radioactive properties of any waters of the state, or37such discharge of any contaminant into the waters of the state as will or is38likely to create a nuisance or render such waters harmful or detrimental or39injurious to public health, safety or welfare or to domestic, commercial,40industrial, recreational, esthetic or other legitimate uses or to livestock,41wild animals, birds, fish or other aquatic life.429. "Waters" mean all the accumulations of water, surface and under-43ground, natural and artificial, public and private, or parts thereof which are44wholly or partially within, flow through or border upon this state.4510. "Solid waste" means garbage, refuse, and other discarded solid46materials, including solid waste materials resulting from industrial, commer-47cial, and agricultural operations, and from community activities, but does not48include solid or dissolved materials in domestic sewage or other significant49pollutants in water resources, such as silt, dissolved or suspended solids in50industrial waste water effluents, dissolved materials in irrigation return51flows or other common water pollutants.5211. "Solid waste disposal" means the collection, storage, treat-53ment, utilization, processing or final disposal of solid waste.5412. "Laboratory" means not only facilities for biological,7 1serological, biophysical, cytological and pathological tests, but also facili-2ties for the chemical or other examination of materials from water, air or3other substances.413. "Person" means any individual, association, partnership, firm, joint5stock company, trust, estate, political subdivision, public or private corpo-6ration, state or federal governmental department, agency or instrumentality,7or any other legal entity which is recognized by law as the subject of rights8and duties.914. "Public swimming pool" means an artificial structure, and its10appurtenances, which contains water more than two (2) feet deep which is used11or intended to be used for swimming or recreational bathing, and which is for12the use of any segment of the public pursuant to a general invitation but not13an invitation to a specific occasion or occasions.1415. "Public water supply" means all mains, pipes and structures15through which water is obtained and distributed to the public, including wells16and well structures, intakes and cribs, pumping stations, treatment plants,17reservoirs, storage tanks and appurtenances, collectively or severally, actu-18ally used or intended for use for the purpose of furnishing water for drinking19or general domestic use in incorporated municipalities; or unincorporated com-20munities where ten (10) or more separate premises or households are being21served or intended to be served; or any other supply which serves water to the22public and which the department of health and welfare declares to have poten-23tial health significance.24 (6) "Laboratory" means not only facilities for biological, 25 serological, biophysical, cytological and pathological tests, but also facili- 26 ties for the chemical or other examination of materials from water, air or 27 other substances. 28 (7) "Medical waste combustor" means any device, incinerator, furnace, 29 boiler or burner, and any and all appurtenances thereto, which burns or 30 pyrolyzes medical waste consisting of human or animal tissues, medical cul- 31 tures, human blood or blood products, materials contaminated with human blood 32 or tissues, used or unused surgical wastes, used or unused sharps including 33 hypodermic needles, suture needles, syringes and scalpel blades. 34 (8) "Person" means any individual, association, partnership, firm, joint 35 stock company, trust, estate, political subdivision, public or private corpo- 36 ration, state or federal governmental department, agency or instrumentality, 37 or any other legal entity which is recognized by law as the subject of rights 38 and duties. 39 (9) "Public water supply" means all mains, pipes and structures 40 through which water is obtained and distributed to the public, including wells 41 and well structures, intakes and cribs, pumping stations, treatment plants, 42 reservoirs, storage tanks and appurtenances, collectively or severally, actu- 43 ally used or intended for use for the purpose of furnishing water for drinking 44 or general domestic use in incorporated municipalities; or unincorporated com- 45 munities where ten (10) or more separate premises or households are being 46 served or intended to be served; or any other supply which serves water to the 47 public and which the department declares to have potential health signifi- 48 cance. 49 (10) "State" means the state of Idaho. 50 (11) "Solid waste" means garbage, refuse, and other discarded solid mate- 51 rials, including solid waste materials resulting from industrial, commercial, 52 and agricultural operations, and from community activities, but does not 53 include solid or dissolved materials in domestic sewage or other significant 54 pollutants in water resources, such as silt, dissolved or suspended solids in 55 industrial waste water effluents, dissolved materials in irrigation return 8 1 flows or other common water pollutants. 2 (12) "Solid waste disposal" means the collection, storage, treatment, uti- 3 lization, processing or final disposal of solid waste. 416.(13) "Substantive" means that which creates, 5 defines or regulates the rights of any person or implements, interprets or 6 prescribes law or policy, but does not include statements concerning only the 7 internal management of the department and not affecting private rights or pro- 8 cedures available to the public. 917. "Nutrient" means any one (1) of the natural elements including,10but not limited to, carbon, hydrogen, oxygen, nitrogen, potassium, phosphorus,11magnesium, sulfur, calcium, sodium, iron, manganese, copper, zinc, molybdenum,12vanadium, boron, chlorine, cobalt and silicon, that are essential to plant and13animal growth.1418. "Medical waste combustor" means any device, incinerator, furnace,15boiler or burner, and any and all appurtenances thereto, which burns or16pyrolyzes medical waste consisting of human or animal tissues, medical cul-17tures, human blood or blood products, materials contaminated with human blood18or tissues, used or unused surgical wastes, used or unused sharps including19hypodermic needles, suture needles, syringes and scalpel blades.20 (14) "Water pollution" is such alteration of the physical, thermal, 21 chemical, biological or radioactive properties of any waters of the state, or 22 such discharge of any contaminant into the waters of the state as will or is 23 likely to create a nuisance or render such waters harmful or detrimental or 24 injurious to public health, safety or welfare or to domestic, commercial, 25 industrial, recreational, esthetic or other legitimate uses or to livestock, 26 wild animals, birds, fish or other aquatic life. 27 (15) "Waters" means all the accumulations of water, surface and under- 28 ground, natural and artificial, public and private, or parts thereof which are 29 wholly or partially within, flow through or border upon this state. 30 SECTION 6. That Section 39-104, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 39-104. DEPARTMENT OFHEALTH AND WELFAREENVIRONMENTAL 33 QUALITY -- CREATION .-- ENVIRONMENTAL PROTECTION34DIVISION -- ADMINISTRATIVE REGIONS.(1) There is created and estab- 35 lished in the state government a department ofhealth and welfare36 environmental quality which shall for the purposes of section 20, 37 article IV, of the constitution of the state of Idaho be an executive depart- 38 ment of the state government. The executive and administrative power of this 39 department shall be vested in the director of the department who shall be 40 appointed and serve at the pleasure of the governor, with the advice and con- 41 sent of the senate. 42 (2) The department shall be organized intoan environmental protec-43tion division and intosuchotheradministrativeand44general servicesdivisions or regions as may be necessary 45 in order to efficiently administer the department. Each division shall be 46 headed bya divisionan administrator who shall be 47 appointed by and serve at the pleasure of the director .48with the concurrence of the board.49 (3) The INEEL coordinator-manager, rRegional 50 administrators andassistantdivision administrators 51in the environmental protection divisionshall be nonclassified 52 employees exempt from the provisions of chapter 53, title 67, Idaho Code. 53(4) In order to provide more effective and economical access to the9 1state environmental, health, and social services by the people of Idaho, the2governor is hereby authorized to establish substate administrative regions. In3the designation of these regions specific consideration shall be given to the4geographic and economic convenience of the citizens included therein. Each5substate administrative region shall be headed by a regional deputy who shall6be appointed by and serve at the pleasure of the director with the concurrence7of the board.8 SECTION 7. That Section 39-105, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 39-105. POWERS AND DUTIES OF THE DIRECTOR. The director shall have the 11 following powers and duties: 12 ( 1.) All of the rights, 13 powers and dutiesof the department of public health, the depart-14ment of health, the board of health, and the air pollution control commission,15are hereby transferred to the director of the department of health and wel-16fare, provided, however, that rulemaking and hearing functions relating to17environmental protection, public health and licensure and certification stan-18dards shall be vested in the board of health and welfare.regard- 19 ing environmental protection functions vested in the department of health and 20 welfare, its director, and the board of health and welfare administered by the 21 division of environmental quality, including, but not limited to, those pro- 22 vided by chapters 1, 4, 30, 36, 44, 58, 62, 64, 65, 66, 70, 71, 72 and 74, 23 title 39, Idaho Code. The director shall have all such powers and 24 duties as described in this section as may have been or could 25 have been exercised byhispredecessors in law, including the 26 authority to adopt, promulgate, and enforce rulesand regulations in27those circumstances when the authority to adopt, promulgate, and enforce such28rules and regulations is not vested in the board of health and welfare,29 and shall be the successor in law to all contractual obligations entered into 30 byhispredecessor s in law. All rulemaking proceed- 31 ings and hearings of the director shall be governed by the provisions of chap- 32 ter 52, title 67, Idaho Code. 33 ( 2.) The director shall, pursuant 34 and subject to the provisions of the Idaho Code, and the provisions of this 35 act, formulateand recommend to the board,rules,regula-36tions,codes and standards, as may be necessary to deal with problems 37 related topersonal health,water pollution, air pollution,38visual pollution, noise abatement,solid waste disposal, and licensure 39 and certification requirements pertinent thereto, which shall, upon 40 adoption ,by the board,have the force of the law 41 relating to any purpose which may be necessary and feasible for enforcing the 42 provisions of this act, including, but not limited to the prevention, control 43 or abatement of environmental pollution or degradation andthe mainte-44nance and protection of personalrisks to public health 45 related to any of the powers and duties described in this section 46 . Any suchregulationrule or standard may be 47 of general application throughout the state or may be limited as to times, 48 places, circumstances or conditions in order to make due allowance for varia- 49 tions therein. 50 ( 3.) The director, underthe51rules,regulations,codes or standards ,52adopted by the board,shall have the general supervision of the promo- 53 tion and protection of thelife, health, mental health andenvi- 10 1 ronmentof the peopleof this state. The powers and duties of the 2 director shall include , but not be limited to , the 3 following: 4 ( a.) The issuance of licenses and 5 permits as prescribed by law and by the rulesand regulations of6the boardpromulgated hereunder . For each air quality 7 operating permit issued under title V of the federal clean air act and its 8 implementing regulations, the director shall, consistent with the federal 9 clean air act and its implementing regulations, expressly include a provi- 10 sion stating that compliance with the conditions of the permit shall be 11 deemed compliance with the applicable requirements of the federal clean 12 air act and the title V implementing regulations. The director may develop 13 and issue general permits covering numerous similar sources, as authorized 14 by 40 CFR 70.6(d) as may be amended, and as appropriate. 15b. The supervision and administration of laboratories and the16supervision and administration of standards of tests for environmental17pollution, chemical analyses and communicable diseases. The director may18require that laboratories operated by any city, county, institution, per-19son, firm or corporation for health or environmental purposes conform to20standards set by the board.21c. The supervision and administration of a mental health program, which22shall include services for the evaluation, screening, custody and treat-23ment of the mentally ill and those persons suffering from a mental defect,24or mental defects.25d. The enforcement of minimum standards of health, safety and sanitation26for all public swimming pools within the state.27e.(b) The enforcement of standards,28and rulesand regulations,relating to 29 public water supplies and to administer the drinking water loan account 30 pursuant to chapter 76, title 39, Idaho Code, including making loans to 31 eligible public drinking water systems as defined in the federal safe 32 drinking water act as amended, and to comply with all requirements of the 33 act, 42 U.S.C. 300f, et seq. and regulations promulgated pursuant to the 34 act. This includes, but is not limited to, the adoption and implementation 35 of an operator certification program; the development of and implementa- 36 tion of a capacity development strategy to ensure public drinking water 37 systems have the technical, managerial and financial capability to comply 38 with the national primary drinking water regulations; and the enhancement 39 of protection of source waters for public drinking water systems. 40f. The supervision and administration of the various schools, hos-41pitals and institutions that were the responsibility of the board of42health at the time this act went into effect.43g. The supervision and administration of services dealing with the prob-44lems of alcoholism, including but not limited to the care and rehabilita-45tion of persons suffering from alcoholism.46h.(c) The establishment of liaison with other 47 governmental departments, agencies and boards in order to effectively 48 assist other governmental entities with the planning for the control of or 49 abatement of environmentaland health problemspollu- 50 tion . All of the rules, regulationand standards 51 adoptedby the boardhereunder shall apply to 52 state institutions. 53i. The supervision and administration of an emergency medical ser-54vice program, including but not limited to assisting other governmental55agencies and local governmental units, in providing first aid emergency11 1medical services and for transportation of the sick and injured.2j.(d) The supervision and administration of a 3 system to safeguard air quality and for limiting and controlling the emis- 4 sion of air contaminants. 5k.(e) The supervision and administration of a 6 system to safeguard the quality of the waters of this state,7 including , but not limited to , the enforcement 8 of standards relating to the discharge of effluent into the waters of this 9 state and the storage, handling and transportation of solids, liquids, and 10 gases which may cause or contribute to water pollution. 11l.(f) The supervision and administration of 12 administrative units whose responsibility shall be to assist and encourage 13 counties, cities, other governmental units, and industries in the control 14 of and/or abatement of environmentaland health problems15 pollution . 16m.(g) The administration of solid waste dis- 17 posal site and design review in accordance with the provisions of chapter 18 74, title 39, Idaho Code, and chapter 4, title 39, Idaho Code, and in par- 19 ticular as follows: 20 ( i.) The issuance of a solid 21 waste disposal site certificate in the manner provided in chapter 74, 22 title 39, Idaho Code. 23 ( ii.) Provide review and 24 approval regarding the design of solid waste disposal facilities and 25 ground water monitoring systems and approval of all applications for 26 flexible standards as provided in 40 CFR 258, in accordance with the 27 provisions of chapter 74, title 39, Idaho Code. 28 ( iii.) Cooperating and coordi- 29 nating with operational monitoring of solid waste disposal sites by 30 district health departments pursuant to authority established in 31 chapters 4 and 74, title 39, Idaho Code. 32 ( iv.) The authority granted 33 to the director pursuant to provisions of this subsection shall be 34 effective upon enactment of chapter 74, title 39, Idaho Code, by the 35 legislature. 36 ( v.) The authority to 37 develop and proposeregulationsrules as 38 necessary to supplement details of compliance with the solid waste 39 facilities act and applicable federal regulations, provided that such 40 regulations shall not conflict with the provisions of this act nor 41 shall such regulations be more strict than the requirements estab- 42 lished in federal law or in the solid waste facilities act. 43n.(h) The enforcement of all laws, rules, 44 regulation s , codes and standards relating to environmental 45 protection .and health.46o. The formulation and adoption of a comprehensive state nutrient47management plan for the surface waters of the state of Idaho in consulta-48tion with the appropriate state or federal agencies, local units of gov-49ernment, and with the public involvement as provided for under the admin-50istrative procedure act. The director shall recommend by March 1, 1990,51to the board for adoption, rules and regulations setting forth procedures52for development of the plan, including mechanisms to keep the public53informed and encourage public participation in plan development.54The plan shall be developed on a hydrologic basin unit basis with a55lake system emphasis. The panhandle hydrologic basin plan shall be com-12 1pleted no later than July 1, 1995. The remaining basin plans shall be com-2pleted no later than January 1, 1995. Each plan shall identify nutrient3sources; the dynamics of nutrient removal, use, and dispersal; and4preventative or remedial actions where feasible and necessary to protect5the surface waters of the state. The director shall formulate and recom-6mend to the board for adoption rules and regulations as necessary to7implement the plan. The plan shall be used by the department and other8appropriate agencies including soil conservation districts, public health9districts and local units of government in developing programs for nutri-10ent management. state and local units of government shall exercise their11police powers in compliance with the comprehensive state nutrient manage-12ment plan of this act. Local nutrient management programs adopted by any13local unit of government prior to the completion of the state comprehen-14sive nutrient management plan or a hydrologic basinplan shall be consis-15tent with the criteria for inclusion in the comprehensive state nutrient16management plan as enumerated in this subsection, as evidenced by findings17of fact by the local units of government and confirmed by the division of18environmental quality and the local health district board. The director19shall recommend by March 1, 1990, to the board for adoption, rules and20regulations for procedures to determine consistency.21p. The formulation of a water quality management plan for Priest lake in22conjunction with a planning team from the Priest lake area whose member-23ship shall be appointed by the board and consist of a fair representation24of the various land managers, and user and interest groups of the lake and25its Idaho watershed. The stated goal of the plan shall be to maintain the26existing water quality of Priest lake while continuing existing nonpoint27source activities in the watershed and providing for project specific best28management practices when necessary. The plan shall include comprehensive29characterization of lake water quality through completion of a baseline30monitoring program to be conducted by the department and shall consider31existing economics and nonpoint source activity dependent industries of32the Priest lake area. The planning team shall conduct public hearings and33encourage public participation in the plan development including opportu-34nity for public review and input. Technical assistance to the planning35team, with state nonpoint source management programs in forest practices,36road construction and maintenance, agriculture and mining shall be pro-37vided by the department. Technical assistance to the planning team on area38planning, zoning and sanitary regulations shall be provided by the clean39lakes council. The plan shall be submitted to the board for its approval40at the end of a three (3) year plan development period. Upon review and41acceptance by the board, the plan shall be submitted to the legislature42for amendment, adoption or rejection. If adopted by the legislature, the43plan shall be enacted by passage of a statute at the regular legislative44session when it receives the plan and shall have the force and effect of45law. Existing forest practices, agricultural and mining nonpoint source46management programs are considered to be adequate to protect water quality47during the plan development period.48 ( 4.) The director, when so desig- 49 nated by the governor, shall have the power to apply for, receive on behalf of 50 the state, and utilize any federal aid, grants, gifts, gratuities, or moneys 51 made available through the federal government, including , but not 52 limited to , the federal water pollution control act, for use in 53 or by the state of Idaho in relation to health and environmental protection. 54 ( 5.) The director shall have the 55 power to enter into and make contracts and agreements with any public agencies 13 1 or municipal corporation for facilities, land, and equipment when such use 2 will have a beneficial,or recreational, or3therapeuticeffect or be in the best interest in carrying out the 4 duties imposed upon the department. 5 The director shall also have the power to enter into contracts for the 6 expenditure of state matching funds for local purposes. This subsection will 7 constitute the authority for public agencies or municipal corporations to 8 enter into such contracts and expend money for the purposes delineated in such 9 contracts. 10 ( 6.) The director is authorized to 11 adopt an official seal to be used on appropriate occasions, in connection with 12 the functions of the departmentor the board,and such seal shall 13 be judicially noticed. Copies of any books, records, papers and other docu- 14 ments in the department shall be admitted in evidence equally with the origi- 15 nals thereof when authenticated under such seal. 16 SECTION 8. That Sections 39-106 and 39-107, Idaho Code, be, and the same 17 are hereby amended to read as follows: 18 39-106. DIRECTOR -- ADDITIONAL POWERS AND DUTIES -- TRANSFER AND 19 CONTINUATION OF RULES AND OTHER PROCEEDINGS . ( 1.20) The director shall exercise the following powers and 21 duties in addition to all other powers and duties inherent in the position: 22 ( a.) Prescribe such rules23and regulationsas may be necessary for the administration of the 24 department, the conduct and duties of the employees, the orderly and effi- 25 cient management of department business, and the custody, use and preser- 26 vation of department records, papers, books and property belonging to the 27 state. 28 ( b.) Employ such personnel as may 29 be deemed necessary, prescribe their duties and fix their compensation 30 within the limits provided by the state personnel system law. 31 ( c.) Administer oaths for all pur- 32 poses required in the discharge of his duties. 33 ( d.) Prescribe the qualifications 34 of all personnel of the department on a nonpartisan merit basis, in accor- 35 dance with the Idaho personnel system law, provided, however, that the 36 administrators in charge of any division or region of the 37 department, and the administrators in charge of the state veterans38homes, state hospital north, state hospital south, and Idaho state school39and hospitalshall serve at the pleasure of the director. 40 ( e.) Create such units, sections 41 and subdivisions as are or may be necessary for the proper and efficient 42 functioning of the department. 432. All of the executive and administrative duties, powers and func-44tions transferred to the administrator of the department of environmental and45community services by chapter 87, Laws of 1973, are hereby transferred to the46director of the department of health and welfare, who shall be the successor47in law to all contractual obligations entered into by his predecessors in law.48493.(2)All rights and title to property50transferred to and vested in the department of environmental and community51services by chapter 87, Laws of 1973, are hereby transferred to and vested in52the department of health and welfareAll books, records, papers, 53 documents, property, real and personal, unexpended appropriations and pending 14 1 business in any way pertaining to the rights, powers and duties regarding 2 environmental protection functions vested in the department of health and wel- 3 fare, its director and the board of health and welfare administered by the 4 division of environmental quality are transferred to and vested in the depart- 5 ment and its director . The department established by this act is empow- 6 ered to acquire, by purchase or exchange, any property which in the judgment 7 of the department isnotneedful for the operation of the facili- 8 ties and programs for which it is responsible and to dispose of, by sale or 9 exchange, any property which in the judgment of the department is not needful 10 for the operation of the same. 114.(3) Allcodes,rules,reg-12ulations,standards, plans, licenses, permits ,and13certificatesconsent orders, compliance schedules, certifica- 14 tions, and other agreements pertaining to environmental protection functions 15 administered by the division of environmental quality heretofore 16 adopted or issued by theboard of environmental and commu-17nity services, or the department of environmental and community services, pur-18suant to chapter 87, Laws of 1973,department of health and wel- 19 fare, its director and the board of health and welfare are transferred to the 20 department of environmental quality and shall remain in full force and 21 effect until superseded .by rules, regulations, standards,22plans, licenses, permits and certificates duly adopted or issued under the23provisions of this act.The terms "department," "director" and 24 "board" in such rules shall mean the department of environmental quality and 25 its director, until such rules are amended. 26 (4) The department of environmental quality and its director shall be the 27 successor to all rights, powers and duties of the department of health and 28 welfare, its director and the board of health and welfare regarding all rule- 29 making proceedings, administrative proceedings, contested cases, civil 30 actions, contracts, delegations, authorizations and other matters pertaining 31 to environmental protection functions. 3239-107. BOARD -- COMPOSITION -- OFFICERS -- COMPENSATION -- POWERS33-- SUBPOENA -- DEPOSITIONS -- REVIEW -- RULES. 1. The board of health and wel-34fare shall consist of seven (7) members who shall be appointed by the gover-35nor, with the advice and consent of the senate. The members may be removed by36the governor for cause. Each member of the board shall be a citizen of the37United States, a resident of the state of Idaho, and a qualified elector. Not38more than four (4) members of the board shall be from any one (1) political39party. All members of the board shall be chosen with due regard to their40knowledge and interest in environmental protection and health.412. The members of the board of environmental and community services,42serving on the effective date of this act shall continue in office as members43of the board of health and welfare, subject to the provisions of this act.44Four (4) members of the board of environmental and community services shall be45designated by the governor to serve terms on the board of health and welfare46expiring on the first Tuesday following the first Monday of January, 1975. The47remaining three (3) members of the board of environmental and community ser-48vices shall serve terms on the board of health and welfare expiring on the49first Tuesday following the first Monday of January, 1977. Thereafter, all50members of the board of health and welfare shall serve four (4) year terms.513. The board annually shall elect a chairman, a vice-chairman, and a sec-52retary, and shall hold such meetings as may be necessary for the orderly con-53duct of its business, and such meetings shall be held from time to time on54seventy-two (72) hours' notice of the chairman or a majority of the members.55Five (5) members shall be necessary to constitute a quorum at any regular or15 1special meeting and the action of the majority of members present shall be the2action of the board. The members of the board shall be compensated as provided3in section 59-509(h), Idaho Code.44. The board, in furtherance of its duties under this act and under its5rules, shall have the power to administer oaths, certify to official acts, and6to issue subpoenas for the attendance of witnesses and the production of7papers, books, accounts, documents and testimony. The board may, if a witness8refuses to attend or testify, or to produce any papers required by such sub-9poenas, report to the district court in and for the county in which the pro-10ceeding is pending, by petition, setting forth that due notice has been given11of the time and place of attendance of said witnesses, or the production of12said papers, that the witness has been properly summoned, and that the witness13has failed and refused to attend or produce the papers required by this sub-14poena before the board, or has refused to answer questions propounded to him15in the course of said proceedings, and ask an order of said court compelling16the witness to attend and testify and produce said papers before the board.17The court, upon the petition of the board, shall enter an order directing the18witness to appear before the court at a time and place to be fixed by the19court in such order, the time to be not more than ten (10) days from the date20of the order, and then and there shall show cause why he has not attended and21testified or produced said papers before the board. A copy of said order shall22be served upon said witness. If it shall appear to the court that said sub-23poena was regularly issued by the board and regularly served, the court shall24thereupon order that said witness appear before the board at the time and25place fixed in said order, and testify or produce the required papers. Upon26failure to obey said order, said witness shall be dealt with for contempt of27court.285. The director, his designee, or any party to the action may, in an29investigation or hearing before the board, cause the deposition or interroga-30tory of witnesses or parties residing within or without the state, to be taken31in the manner prescribed by law for like depositions and interrogatories in32civil actions in the district court of this state, and to that end may compel33the attendance of said witnesses and production of books, documents, papers34and accounts.356.(5) Any person aggrieved by an action or 36 inaction of the departmentof health and welfareshall be 37 afforded an opportunity for a fair hearing upon request therefor in writing 38 pursuant to chapter 52, title 67, Idaho Code, and the rules promulgated there- 39 under.In those cases where the board has been granted the authority to40hold sS uch a hearingpursuant to a provision of the41Idaho Code, the hearingmay be conducted by theboard at a regu-42lar or special meetingdirector , or theboard may43director shall designate qualified hearing 44 officers, who shall have the power and authority to conduct hearings in the 45 name of theboarddirector at any time and place. In 46 any hearing,a member oftheboarddirector 47 or hearing officer designated byitthe director 48 , shall have the power to administer oaths, examine witnesses, and issue 49in the name of the boardsubpoenas requiring the testimony of 50 witnesses and the production of evidence relevant to any matter in the hear- 51 ing. At the request of any party to a contested case process, the direc- 52 tor may, if a witness refuses to attend or testify, or to produce any papers 53 required by such subpoenas, report to the district court in and for the county 54 in which the proceeding is pending, by petition, setting forth that due notice 55 has been given of the time and place of attendance of said witnesses, or the 16 1 production of said papers, that the witness has been properly summoned, and 2 that the witness has failed and refused to attend or produce the papers 3 required by this subpoena, or has refused to answer questions propounded to 4 him in the course of said proceedings, and ask an order of said court compel- 5 ling the witness to attend and testify and produce said papers. The court, 6 upon the petition of the director, shall enter an order directing the witness 7 to appear before the court at a time and place to be fixed by the court in 8 such order, the time to be not more than ten (10) days from the date of the 9 order, and then and there shall show cause why he has not attended and testi- 10 fied or produced said papers before the director. A copy of said order shall 11 be served upon said witness. If it shall appear to the court that said sub- 12 poena was regularly issued by the director and regularly served, the court 13 shall thereupon order that said witness appear before the director at the time 14 and place fixed in said order, and testify or produce the required papers. 15 Upon failure to obey said order, said witness shall be dealt with for contempt 16 of court. 17 (6) The director, his designee, or any party may, in a hearing before the 18 director, cause the deposition or interrogatory of witnesses or parties resid- 19 ing within or without the state, to be taken in the manner prescribed by law 20 for like depositions and interrogatories in civil actions in the district 21 court of this state, and to that end may compel the attendance of said wit- 22 nesses and production of books, documents, papers, accounts and testimony. 23 24 (7) After a contested case hearing and issuance of a preliminary 25 order or recommended order by the designated hearing officer or issuance of a 26 final order when the director conducts the hearing, a party to the contested 27 case proceeding may request within fourteen (14) days that the director con- 28 vene a three (3) person panel to review such order. A request for panel review 29 of a preliminary order shall also be considered a petition for review for pur- 30 poses of sections 67-5243, 67-5245 and 67-5246, Idaho Code. The fourteen (14) 31 day period for filing a request to convene a panel is tolled by the filing of 32 a petition for reconsideration under section 67-5243(3), Idaho Code. The 33 director shall thereafter convene the panel to independently review such order 34 and make recommendations to the director based upon the agency record. Members 35 of the panel shall not be employees of the department or the parties to the 36 contested case proceeding. Panel members may be disqualified as authorized 37 under section 67-5252, Idaho Code. The panel shall allow all parties to pres- 38 ent briefs on the issues and allow all parties to participate in oral argu- 39 ment. The panel shall issue its written recommendation to the director within 40 fifty-six (56) days of the request to convene the panel unless the period is 41 extended for good cause, with the written consent of all parties. The director 42 shall review the recommendation of the panel, any preliminary or recommended 43 order and the agency record and issue a final order pursuant to the procedures 44 in the Idaho administrative procedure act. 457.(8) Any person adversely affected by a final 46 determination of theboarddirector , may secure 47 judicial review by filing a petition for review as prescribed under the provi- 48 sions of chapter 52, title 67, Idaho Code. The petition for review shall be 49 served uponthe chairman of the board,the director of the 50 department, and upon the attorney general of the state of Idaho. Such service 51 shall be jurisdictional and the provisions of this section shall be the exclu- 52 sive procedure for appeal. 538. The board, by the affirmative vote of four (4) of its members,54may adopt, amend or repeal the rules, codes, and standards of the department,55that are necessary and feasible in order to carry out the purposes and provi-17 1sions of this act and to enforce the laws of this state.2The rules and orders so adopted and established shall have the force and3effect of law and may deal with any matters deemed necessary and feasible for4protecting the environment or the health of the state.59. All rule making proceedings and hearings of the board shall be gov-6erned by the provisions of chapter 52, title 67, Idaho Code.710. All codes, rules and standards heretofore adopted by the department of8public health, the board of health, and the air pollution control commission9and board of environmental and community services, shall remain in full force10and effect until superseded by rules and standards duly adopted by the board11or until the same is rejected, amended or modified by the legislature in12accordance with the provisions of chapter 52, title 67, Idaho Code.1311. All of the powers and duties, rule making and hearing functions trans-14ferred to the board of environmental and community services in chapter 87,15laws of 1973, are hereby transferred to the board of health and welfare.1617 (9) The department shall adopt rules which include: 18 (a) Contested case rules that are consistent with the rules adopted by 19 the attorney general under section 67-5206(4), Idaho Code, the provisions 20 of this act and other statutory authority of the department; 21 (b) Procedures governing selection of qualified hearing officers; and 22 (c) Procedures governing selection of an independent panel. 23 SECTION 9. That Section 39-107a, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 39-107a. REAL PROPERTY IN BUNKER HILL CLEANUP SITE. Notwithstanding any 26 other provision of law to the contrary, the departmentof health and27welfaremay accept transfer from the United States of any real property 28 or interest in real property acquired by the United States for remediation 29 purposes concerning the Bunker Hill Superfund Site pursuant to 42 U.S.C. sec- 30 tion 9604(j). The state of Idaho shall incur no liability nor be subject to 31 any claims related to the existence, release or threatened release of any haz- 32 ardous substance or contaminant or pollutant on, or from, any such real prop- 33 erty. Any such real property which has a public use or commercial value and 34 which is not useful or usable by the departmentof health and welfare35shall be subject to sections 58-331 through 58-335, Idaho Code, except 36 that any receipts from the disposal of such property shall be deposited in the 37 Bunker Hill Cleanup Trust Fund established by the Trust Fund Declaration of 38 the state of Idaho dated May 2, 1994 (Attachment N, Consent Decree, United 39 States of America v. Asarco, Inc. No. CV-94-0206-N-HLR (D. Idaho)) for the 40 purpose of funding institutional control or operation and maintenance activi- 41 ties regarding the site. 42 SECTION 10. That Chapter 1, Title 39, Idaho Code, be, and the same is 43 hereby amended by the addition thereto of a NEW SECTION , to be 44 known and designated as Section 39-107b, Idaho Code, and to read as follows: 45 39-107b. DEPARTMENT OF ENVIRONMENT FUND. (1) There is hereby created a 46 fund in the state treasury to be known as the department of environment fund 47 and all moneys deposited therein shall be available to be appropriated to the 48 department of environmental quality for purposes for which the department was 49 established. 50 (2) All federal grants, fees for services, permitting fees, other program 51 income, and transfers from other funds subject to administration by the direc- 18 1 tor of the department of environmental quality shall be placed in the fund 2 provided that the accounting system must provide for identification of the 3 balance of each funding source within the fund. 4 (3) The state controller shall make transfers to the fund from the gen- 5 eral fund and any other funds appropriated to the department of environmental 6 quality as requested by the director of the department and approved by the 7 board of examiners. 8 SECTION 11. That Chapter 1, Title 39, Idaho Code, be, and the same is 9 hereby amended by the addition thereto of a NEW SECTION , to be 10 known and designated as Section 39-107c, Idaho Code, and to read as follows: 11 39-107c. DEPARTMENT OF ENVIRONMENT TRUST FUND. The director of the 12 department of environmental quality may receive, on behalf of the department 13 of environmental quality, any moneys or real or personal property donated, 14 bequeathed, devised, or conditionally granted to the department of environmen- 15 tal quality. Such moneys received directly or derived from the sale of such 16 property shall be deposited by the state treasurer in a special account to be 17 known as the department of environment trust fund which is hereby established, 18 reserved, set aside, appropriated, and made available until expended, used and 19 administered to carry out the terms or conditions of such donation, bequest, 20 devise or grant. Pending such expenditure or use, surplus moneys in the envi- 21 ronment trust fund shall be invested by the state treasurer in the manner pro- 22 vided for idle state moneys in the state treasury by section 67-1210, Idaho 23 Code. Interest received on all such investments shall be paid into the trust 24 fund. 25 SECTION 12. That Section 39-108, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 39-108. INVESTIGATION -- INSPECTION -- RIGHT OF ENTRY -- VIOLATION -- 28 ENFORCEMENT -- PENALTY -- INJUNCTIONS. ( 1.) 29 The director shall cause investigations to be madeupon the30request of the board orupon receipt of information concerning an 31 alleged violation of this act or of any rule, regulation, permit or order pro- 32 mulgated thereunder, and may cause to be made such other investigations as the 33 director shall deem advisable. 34 ( 2.) For the purpose of enforcing 35 any provision of this chapter or any rule authorized in this chapter, the 36 director or the director's designee shall have the authority to: 37 ( a.) Conduct a program of continu- 38 ing surveillance and of regular or periodic inspection of actual or poten- 39 tialhealthenvironmental hazards, air contami- 40 nation sources, water pollution sources, noise sources,and 41 of solid waste disposal sites; 42 ( b.) Enter at all reasonable times 43 upon any private or public property, upon presentation of appropriate cre- 44 dentials, for the purpose of inspecting or investigating to ascertain pos- 45 sible violations of this act or of rules, regulations, permits or orders 46 adopted and promulgated by the director ;or the board;4748 ( c.) All inspections and investi- 49 gations conducted under the authority of this chapter shall be performed 50 in conformity with the prohibitions against unreasonable searches and sei- 51 zures contained in the fourth amendment to the constitution of the United 19 1 States and section 17, article I, of the constitution of the state of 2 Idaho. The state shall not, under the authority granted by this chapter, 3 conduct warrantless searches of private property in the absence of either 4 consent from the property owner or occupier or exigent circumstances such 5 as a public health or environmental emergency; 6 ( d.) Any district court in and for 7 the county in which the subject property is located is authorized to issue 8 a search warrant to the director upon a showing of (i) probable cause to 9 suspect a violation, or (ii) the existence of a reasonable program of 10 inspection. Any search warrant issued under the authority of this chapter 11 shall be limited in scope to the specific purposes for which it is issued 12 and shall state with specificity the manner and the scope of the search 13 authorized. 14 ( 3.) Whenever the director deter- 15 mines that any person is in violation of any provision of this act or any 16 rule, regulation, permit or order issued or promulgated pursuant to this act, 17 the director may commence either of the following: 18 ( a.) Administrative Enforcement 19 Action 20 ( i.) Notice. The director 21 may commence an administrative enforcement action by issuing a writ- 22 ten notice of violation. The notice of violation shall identify the 23 alleged violation with specificity, shall specify each provision of 24 the act, rule, regulation, permit or order which has been violated, 25 and shall state the amount of civil penalty claimed for each viola- 26 tion. The notice of violation shall inform the person to whom it is 27 directed of an opportunity to confer with the director or the 28 director's designee in a compliance conference concerning the alleged 29 violation. A written response may be required within fifteen (15) 30 days of receipt of the notice of violation by the person to whom it 31 is directed. 32 ( ii.) Scheduling compliance 33 conference. If a recipient of a notice of violation contacts the 34 department within fifteen (15) days of the receipt of the notice, the 35 recipient shall be entitled to a compliance conference. The confer- 36 ence shall be held within twenty (20) days of the date of receipt of 37 the notice, unless a later date is agreed upon between the parties. 38 If a compliance conference is not requested, the director may proceed 39 with a civil enforcement action as provided in paragraph ( 40 b.) of this subsection. 41 ( iii.) Compliance conference. 42 The compliance conference shall provide an opportunity for the recip- 43 ient of a notice of violation to explain the circumstances of the 44 alleged violation and, where appropriate, to present a proposal for 45 remedying damage caused by the alleged violation and assuring future 46 compliance. 47 ( iv.) Consent order. If the 48 recipient and the director agree on a plan to remedy damage caused by 49 the alleged violation and to assure future compliance, they may enter 50 into a consent order formalizing their agreement. The consent order 51 may include a provision providing for payment of any agreed civil 52 penalty. 53 ( v.) Effect of consent 54 order. A consent order shall be effective immediately upon signing by 55 both parties and shall preclude any civil enforcement action for the 20 1 same alleged violation. If a party does not comply with the terms of 2 the consent order, the director may seek and obtain, in any appropri- 3 ate district court, specific performance of the consent order and 4 such other relief as authorized in this chapter. 5 ( vi.) Failure to reach con- 6 sent order. If the parties cannot reach agreement on a consent order 7 within sixty (60) days after the receipt of the notice of violation 8 or if the recipient does not request a compliance conference as per 9subsectionparagraph ( a.10 ) ( ii.) of this section, 11 the director may commence and prosecute a civil enforcement action in 12 district court, in accordance with subsection ( b.13) of this section. 14 ( b.) Civil enforcement action. The 15 director may initiate a civil enforcement action through the attorney gen- 16 eral as provided in section 39-109, Idaho Code. Civil enforcement actions 17 shall be commenced and prosecuted in the district court in and for the 18 county in which the alleged violation occurred, and may be brought against 19 any person who is alleged to have violated any provision of this act or 20 any rule, regulation, permit or order which has become effective pursuant 21 to this act. Such action may be brought to compel compliance with any pro- 22 vision of this act or with any rule, regulation, permit or order promul- 23 gated hereunder and for any relief or remedies authorized in this act. The 24 director shall not be required to initiate or prosecute an administrative 25 action before initiating a civil enforcement action. 26 ( 4.) No civil or administrative 27 proceeding may be brought to recover for a violation of any provision of this 28 chapter or a violation of any rule, regulation, permit or order issued or pro- 29 mulgated pursuant to this chapter, more than two (2) years after the director 30 had knowledge or ought reasonably to have had knowledge of the violation. 31 ( 5.) Monetary penalties. 32 (a) Any person determined in a civil enforcement action to have violated 33 any provision of this act or any rule, regulation, permit or order promul- 34 gated pursuant to this act shall be liable for a civil penalty not to 35 exceed ten thousand dollars ($10,000) per violation or one thousand dol- 36 lars ($1,000) for each day of a continuing violation, whichever is greater 37 or ten thousand dollars ($10,000) for each separate air violation and day 38 of continuing air violation. The method of recovery of said penalty shall 39 be by a civil enforcement action in the district court in and for the 40 county where the violation occurred. All civil penalties collected under 41 this act shall be paid into the general fund of the state. Parties to an 42 administrative enforcement action may agree to a civil penalty as provided 43 in this subsection. 44 (b) The imposition or computation of monetary penalties may take into 45 account the seriousness of the violation, good faith efforts to comply 46 with the law, and an enforceable commitment by the person against whom the 47 penalty is directed to implement a supplemental environmental project. For 48 purposes of this section, "supplemental environmental project" means a 49 project which the person is not otherwise required to perform and which 50 prevents pollution, reduces the amount of pollutants reaching the environ- 51 ment, contributes to public awareness of environmental matters, or 52 enhances the quality of the environment. In evaluating a particular sup- 53 plemental environmental project proposal, preference may be given to those 54 projects with an environmental benefit which relates to the violation or 55 the objectives of the underlying statute which was violated or which 21 1 enhances the quality of the environment in the general geographic location 2 where the violation occurred. 3 ( 6.) In addition to such civil 4 penalties, any person who has been determined to have violated the provisions 5 of this act or the rules, regulations, permits or orders promulgated thereun- 6 der, shall be liable for any expense incurred by the state in enforcing the 7 act, or in enforcing or terminating any nuisance, source of environmental deg- 8 radation, cause of sickness, or health hazard. 9 ( 7.) No action taken pursuant to 10 the provisions of this act or of any other environmental protectionor11healthlaw shall relieve any person from any civil action and damages 12 that may exist for injury or damage resulting from any violation of this act 13 or of the rules, regulations, permits and orders promulgated thereunder. 14 ( 8.) In addition to, and notwith- 15 standing other provisions of this act, in circumstances of emergency creating 16 conditions of imminent and substantial danger to the public health or environ- 17 ment, the prosecuting attorney or the attorney general may institute a civil 18 action for an immediate injunction to halt any discharge, emission or other 19 activity in violation of provisions of this act or rules, regulations, permits 20 and orders promulgated thereunder. In such action the court may issue an ex 21 parte restraining order. 22 SECTION 13. That Section 39-109, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 39-109. COMMENCEMENT OF CIVIL ENFORCEMENT ACTIONS -- CRIMINAL ACTIONS 25 AUTHORIZED -- DUTIES OF ATTORNEY GENERAL. Upon request ofthe board or26the director, it shall be the duty of the attorney general to institute 27 and prosecute civil enforcement actions or injunctive actions as provided in 28 section 39-108, Idaho Code, and to prosecute actions or proceedings for the 29 enforcement of any criminal provisions of this chapter. In addition, when 30 deemed by the director to be necessary, the director may retain or employ 31 private counsel. The attorney general may delegate the authority and duty 32 under this section to prosecute criminal actions to the prosecuting attorney 33 of the county in which such a criminal action may arise. 34 SECTION 14. That Section 39-110, Idaho Code, be, and the same is hereby 35 amended to read as follows: 36 39-110. REGISTRATION OF PERSONS ENGAGED IN OPERATIONS OR CONSTRUCTION 37 WHERE AIR POLLUTION IS A FACTOR -- REPORTS. The directoror board38 may require the registration of persons engaged in operations which may result 39 in air pollution, and of persons causing, permitting or allowing construction 40 of any facility or new equipment capable of emitting air contaminants into the 41 atmosphere, or designed to eliminate or reduce emissions into the atmosphere, 42 and the filing of reports by them with the department relating to locations, 43 size of outlet, height of outlet, rate and period of emission and composition 44 of effluent, and such other information as the directoror board45 shall prescribe relative to air pollution. 46 SECTION 15. That Section 39-111, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 39-111. REPORTS CONTAINING INFORMATION WHICH ADVERSELY AFFECT COMPETITIVE 49 POSITIONS TO BE HELD CONFIDENTIAL. Any records or other information furnished 22 1 to theboard,director or a designated hearing officer concerning 2 one (1) or more air or water pollution sources, which records or 3 information, as certified by the owner or operator, relate to production or 4 sales figures or to processes or production unique to the owner or operator or 5 which tend to affect adversely the competitive position of such owner or oper- 6 ator, shall be only for the confidential use of theboard,direc- 7 tor and hearing officer in the administration of this act, and 8 shall be subject to disclosure according to chapter 3, title 9, Idaho Code. 9 SECTION 16. That Section 39-112, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 39-112. EMERGENCY -- ORDER -- HEARING -- MODIFICATION, AFFIRMANCE, OR 12 SETTING ASIDE. (1) Any other provision of law to the contrary notwithstanding, 13 if theboarddirector finds that a generalized con- 14 dition of air pollution exists and that it creates an emergency requiring 15 immediate action to protect human health or safety, theboard16 director , with the concurrence of the governor as to the exis- 17 tence of such an emergency shall order persons causing or contributing to the 18 air pollution to reduce or discontinue immediately the emission of air 19 contaminants, and such order shall fix a time and place, not later than 20 twenty-four (24) hours thereafter, for a hearing to be held before the21boarddirector . Not more than twenty-four (24) hours after 22 the commencement of such hearing, and without adjournment thereof, the23boarddirector shall affirm, modify or set aside its 24 order. 25 (2) In the absence of a generalized condition of air pollution of the 26 type referred to in subsection (1), if theboarddirector 27 finds that emissions from the operation of one (1) or more 28 air contaminant sources is causing imminent danger to human health or safety 29 it may order the person or persons responsible for the operation or operations 30 in question to reduce or discontinue emissions immediately without regard to 31 other provisions of this act. In such event, the requirements for hearing and 32 affirmance, modification or setting aside of an order set forth in subsection 33 (1) shall apply. 34 (3) Nothing in this section shall be construed to limit any power which 35 the governor or any other officer may have to declare an emergency and act on 36 the basis of such declaration, if such power is conferred by statute or con- 37 stitutional provision, or inheres in the office. 38 SECTION 17. That Section 39-113, Idaho Code, be, and the same is hereby 39 amended to read as follows: 40 39-113.RIGHTS OF TRANSFERREDTRANSFER OF 41 EMPLOYEES .UNDER GROUP PLANS UNAFFECTED.The42provisions of this actAll employees of the division of environ- 43 mental quality and the INEEL oversight program of the department of health and 44 welfare are transferred to the department of environmental quality. Such 45 transfer shall in no manner affect theirrights or privi- 46 leges of any transferred employeetransferredunder 47 the public employees retirement system (chapter 13, title 59, Idaho Code), the 48 group insurance plan (chapter 12, title 59, Idaho Code), or personnel system 49 (chapter 53, title 67, Idaho Code). Additionally, when the department of 50 health and welfare is used in terms of environmental protection or 51 remediation, it shall mean the department of environmental quality. 23 1 SECTION 18. That Section 39-114, Idaho Code, be, and the same is hereby 2 repealed. 3 SECTION 19. That Section 39-115, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 39-115. POLLUTION SOURCE PERMITS. 6 (1)(a)The director shall have the authority to issue pol- 7 lution source permits in compliance with theregulations8 rules establishedby the board of health and welfare9hereunder . 10 (b) Theboarddirector shall develop criteria 11 throughrule making by November 15, 1993,rulemaking 12 to determine insignificant activities and such sources or modifica- 13 tion with emissions at or below thedeminimisde 14 minimis level which shall not require either a permit to construct 15 or a permit to operate; provided however, that a registration of the 16 activities or sources may be required. 17 (2) The director shall have the authority to sue in competent courts to 18 enjoin any threatened or continuing: 19 (a) Violations of pollution source permits or conditions thereof without 20 the necessity of a prior revocation of the permit; or 21 (b) Construction of an industrial or commercial air pollution source 22 without a permit required under this chapter orregulations23 rules adoptedby the boardhereunder 24 . 25 (3) The department is authorized to charge and collect a fee for process- 26 ing applications for industrial or commercial air pollution source permits in 27 accordance with a fee schedule established by theboard28 director pursuant to this chapter. For fees charged for operating per- 29 mits under title V of the federal clean air act amendments of 1990, the 30 department shall not charge a fee on any hazardous air pollutant other than 31 those listed under section 112 of the federal clean air act. The fee sched- 32 ule shall be structured to provide an incentive for emission reduction. 33 (4) The director may issue air emission source permits to construct a 34 facility to incinerate any waste or waste item contaminated with 35 polychlorinated biphenyls (PCBs) only if the director finds: 36 (a) The facility will not be sited in complex valley terrain where the 37 valley floor is less than five (5) miles wide and the valley walls rise 38 more than one thousand (1,000) feet; 39 (b) The facility has complied with local planning and zoning require- 40 ments; 41 (c) There has been an opportunity for public participation; and 42 (d) The facility will employ best available technology and instrumenta- 43 tion. 44 Subsection (4) of this section shall not apply to incineration activities 45 existing on or before January 1, 1987. 46 SECTION 20. That Section 39-116, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 39-116. COMPLIANCE SCHEDULES. The director shall have the authority to 49prepare for board approvalissue compliance schedule 50 orders to any person who is the source of any health hazard, air contaminant, 51 water pollution, solid wasteor noisefor which regulatory stan- 24 1 dards have been established, including regulatory standards then in effect or 2 to become effective at a future date or at future successive dates. The pur- 3 pose of any compliance schedule order shall be to identify and establish 4 appropriate acts and time schedules for interim actions by those persons who 5 are or who will be affected by regulatory standards, such acts and schedules 6 being designed to assure timely compliance by those affected by the regulatory 7 standards. The director shall solicit the cooperation of the person to whom 8 the compliance schedule order will be directed in the selection of the terms 9 of such order. Any compliance schedule orderwhen affirmed by the board10shall become a final ordershall be enforceable in the 11 same manner as any order entered pursuant to section 39-108, Idaho Code. 12 SECTION 21. That Section 39-118, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 39-118. REVIEW OF PLANS. ( 1.) 15 Except as provided for dairy systems pursuant to section 37-401, Idaho Code, 16 all plans and specifications for the construction of new sewage systems, sew- 17 age treatment plants or systems, other waste treatment or disposal facilities, 18 public water supply systems or public water treatment systems or for modifica- 19 tion or expansion to existing sewage treatment plants or systems, waste treat- 20 ment or disposal facilities, public water supply systems or public water 21 treatment systems, shall be submitted to and approved by thedepartment22of health and welfaredirector before construction may 23 begin, and all construction shall be in compliance therewith. No deviation 24 shall be made from the approved plans and specifications without the prior 25 approval of thedepartmentdirector . Within thirty 26 (30) days of the completion of construction, alteration, or modification of 27 any new sewage systems, sewage treatment plants or systems, other waste treat- 28 ment or disposal facilities, public water supply systems or public water 29 treatment systems, complete and accurate plans and specifications depicting 30 the actual construction, alteration, or modification performed must be submit- 31 ted to thedepartment of health and welfaredirector 32 . If construction does not deviate from the original plans previously 33 submitted for approval, a statement to that effect shall be filed with the 34 department. 35 ( 2.) All plans and specifications 36 submitted to satisfy the requirements of this section shall conform in style 37 and quality to regularly accepted engineering standards. Except with respect 38 to plans and specifications for facilities addressed in subsection ( 39 3.) of this section, and confined animal feed- 40 ing operations, theboarddirector may require that 41 certain types of plans and specifications must be certified by registered pro- 42 fessional engineers. If thedepartmentdirector 43 determines that any particular facility or category of facilities will produce 44 no significant impact on the environment or on the public health, the45departmentdirector shall be authorized to waive the sub- 46 mittal or approval requirement for that facility or category of facilities. 47 ( 3.) All plans and specifications 48 for the construction, modification, expansion, or alteration of waste treat- 49 ment or disposal facilities for aquaculture facilities licensed by the depart- 50 ment of agriculture for both commercial fish propagation facilities as defined 51 in section 22-4601, Idaho Code, and sport fish propagation facilities whether 52 private or operated or licensed by the department of fish and game and other 53 aquaculture facilities as defined in the Idaho waste management guidelines for 25 1 aquaculture operations, shall be submitted and approved by thedepart-2mentdirector ofhealth and welfare3 environmental quality before construction may begin and all construc- 4 tion shall be in compliance therewith. Thedepartment5 director shall review plans and specifications within forty-five (45) 6 days of submittal and notify the owner or responsible party of approval or 7 disapproval. In the event of disapproval thedepartment8 director shall provide reasons for disapproval in writing to the owner 9 or responsible party. Plans and specifications shall conform in style and 10 quality to standard industry practices and guidelines developed pursuant to 11 this subsection. The director shall establish industry guidelines or best man- 12 agement practices subcommittees composed of members of the department, spe- 13 cific regulatory agencies for the industry, general public, and persons 14 involved in the industry to develop and update guidelines or best management 15 practices as needed. Within thirty (30) days of the completion of the con- 16 struction, modification, expansion or alteration of facilities subject to this 17 subsection, the owner or responsible party shall submit a statement to the 18 department that the construction has been completed and is in substantial com- 19 pliance with the plans and specifications as submitted and approved. The20departmentdirector shall conduct an inspection within 21 sixty (60) days of the date of submission of the statement and shall inform 22 the owner or responsible party of its approval of the construction or in the 23 event of nonapproval, the reasons for nonapproval. 24 SECTION 22. That Section 39-118B, Idaho Code, be, and the same is hereby 25 amended to read as follows: 26 39-118B. RELATIONSHIP TO FEDERAL LAW. Theboarddirec- 27 tor may promulgate rulesand regulationsto ensure that 28 the state of Idaho is in compliance with the provisions of the federal clean 29 air act. To the extent that the federal clean air act sets forth or the United 30 States environmental protection agency adopts or has adopted a specific stan- 31 dard, emission limitation or control technology requirement under the clean 32 air act, a more stringent standard, emission limitation or control technology 33 requirement promulgated by theboarddirector shall 34 not become effective until specifically approved by statute. 35 SECTION 23. That Section 39-118D, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 39-118D. IDAHO AIR QUALITY PERMITTING ACCOUNT. (1) All moneys received 38 from fees collected from the pollution sources requiring permitting under 39 title V of the federal clean air act amendments of 1990 shall be forwarded to 40the division of environmental quality ofthe department of41health and welfareenvironmental quality and shall be paid 42 into the Idaho air quality permitting account which is hereby created in the 43 office of the state treasurer. 44 (2) Such moneys and all interest earned thereon shall be kept in the 45 Idaho air quality permitting account and shall be expended for the technical, 46 legal and administrative support necessary for implementing the operating per- 47 mit program required under title V of the federal clean air act amendments of 48 1990. 49 (3) All salaries, costs and expenses incurred by thedivision50department of environmental quality in performing the 51 duties and the exercise of its powers in carrying out the operating permit 26 1 program required under title V of the federal clean air act amendments of 1990 2 shall be paid out of the air quality permitting account. 3 SECTION 24. That Section 39-119, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 39-119. COLLECTION OF FEES FOR SERVICES. The departmentof health6and welfareis hereby authorized to charge and collect reasonable fees, 7 established by standards formulated by theboard of health and welfare8director , for any service rendered by the department. 9The fee may be determined by a sliding scale according to income or10available assets. The department is hereby authorized to require information11concerning the total income and assets of each person receiving services in12order to determine the amount of fee to be charged.13 SECTION 25. That Section 39-120, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 39-120. DEPARTMENT OFHEALTH AND WELFAREENVIRONMENTAL 16 QUALITY PRIMARY ADMINISTRATIVE AGENCY -- AGENCY RESPONSIBILITIES. 17 ( 1.) The department ofhealth and wel-18fareenvironmental quality is designated as the primary 19 agency to coordinate and administer ground water quality protection programs 20 for the state. 21 ( 2.) Recognizing that the depart- 22 ment of water resources has the responsibility to maintain the natural 23 resource geographic information system for the state and is the collector of 24 baseline data for the state's water resources, that the department of25health and welfareenvironmental quality has the responsi- 26 bility for collecting and monitoring data for water quality management pur- 27 poses and that the department of agriculture is responsible for regulating the 28 use of pesticides and fertilizers and for licensing applicators, the depart- 29 ment ofhealth and welfareenvironmental quality , 30 the department of water resources and the department of agriculturein31coordination with the ground water quality councilshall: 32 ( a.) Develop a ground water moni- 33 toring plan, concurrently with the development of a ground water quality 34 plan, for development and administration of a comprehensive ground water 35 quality monitoring network, including point of use, point of contamination 36 and problem assessment monitoring sites across the state and the assess- 37 ment of ambient ground water quality utilizing, to the greatest degree 38 possible, collection and coordination of existing data sources. 39b. Prepare an annual report during the life of the council detail-40ing the number and concentration of contaminants detected in ground water41by location.42c.(b) Establish a system or systems within state 43 departments and political subdivisions of the state for collecting, evalu- 44 ating and disseminating ground water quality data and information. 45d.(c) Develop and maintain a natural resource 46 geographic information system and comprehensive water resource data sys- 47 tem. The system shall be accessible to the public. 48 ( 3.) The responsible state depart- 49 ments or boards, after consultation with the ground water quality coun-50cil,should adopt rules which specify the general standards for deter- 51 mining actions necessary to prevent ground water contamination and cleanup 27 1 actions necessary to meet the goals of the state. 2 ( 4.) Theboard of health and3welfaredirector of the department of environmental quality 4 may adopt, by rule,after consultation with the ground water5quality council,ambient ground water quality standards for 6 contaminants for which the administrator of the United States environmental 7 protection agency has established drinking water maximum contaminant levels. 8 Theboard, after consultation with the ground water quality council,9director may adopt by rule such ground water quality stan- 10 dards for contaminants for which the administrator has not established drink- 11 ing water maximum contaminant levels. However, the existence of such stan- 12 dards, or the lack of them, should not be construed or utilized in derogation 13 of the ground water quality protection goal and protection policies of the 14 state. 15 ( 5.) The departments of16health and welfareenvironmental quality , water resources 17 and agriculture should take actions necessary to promote and assure public 18 confidence and public awareness of ground water quality protection. In pursu- 19 ing this goal, the departments and public health districts should make public 20 the results of investigations concerning ground water quality subject to the 21 restrictions contained in section 39-111, Idaho Code. 22 SECTION 26. That Section 39-121, Idaho Code, be, and the same is hereby 23 amended to read as follows: 24 39-121. DEFINITIONS. As used in section 39-102, Idaho Code, and in sec- 25 tions 39-120 through 39-127, Idaho Code: 26 ( 1.) "Cleanup" means removal, 27 treatment or isolation of a contaminant from ground water through the directed 28 efforts of humans or the removal or treatment of a contaminant in ground water 29 through management practice or the construction of barriers, trenches and 30 other similar facilities for prevention of contamination, as well as the use 31 of natural processes such as ground water recharge, natural decay and chemical 32 or biological decomposition. 33 ( 2.) "Contaminant" means any chem- 34 ical, ion, radionuclide, synthetic organic compound, microorganism, waste or 35 other substance which does not occur naturally in ground water or which natu- 36 rally occurs at a lower concentration. 37 ( 3.) "Contamination" means the 38 direct or indirect introduction into ground water of any contaminant caused in 39 whole or in part by human activities. 404. "Council" or "ground water quality council" means the ground41water quality council created in section 39-122, Idaho Code.425.(4) "Ground water" means any water of the state 43 which occurs beneath the surface of the earth in a saturated geological forma- 44 tion of rock or soil. 45 (5) "Ground water quality plan" or "ground water quality protection 46 plan" means the Idaho ground water quality plan adopted by the legislature in 47 section 1, chapter 310, laws of 1992, and in section 1, chapter 273, laws of 48 1995. 49 SECTION 27. That Sections 39-122, 39-123, 39-124 and 39-125, Idaho Code, 50 be, and the same are hereby repealed. 51 SECTION 28. That Section 39-126, Idaho Code, be, and the same is hereby 28 1 amended to read as follows: 2 39-126. DUTIES OF STATE AND LOCAL UNITS OF GOVERNMENT. ( 3 1.) All state agencies shall incorporate the 4 adopted ground water quality protection plan in the administration of their 5 programs and shall have such additional authority to promulgate rules6and regulationsto protect ground water quality as necessary to admin- 7 ister such programs which shall be in conformity with the ground water quality 8 protection plan. Cities, counties and other political subdivisions of the 9 state shall incorporate the ground water quality protection plan in their pro- 10 grams and are also authorized and encouraged to implement ground water quality 11 protection policies within their respective jurisdictions, provided that the 12 implementation is consistent with and not preempted by the laws of the state, 13 the ground water quality protection plan and any rulesor regulations14promulgated thereunder. All state agencies, cities, counties and other 15 political subdivisions shall cooperate withthe ground water quality16council,the department ofhealth and welfareenvi- 17 ronmental quality , the department of agriculture and the department of 18 water resources in disseminating public information and education materials 19 concerning the use and protection of ground water quality, in collecting 20 ground water quality management data, and in conducting research on 21 technologies to prevent or remedy contamination of ground water. 22 ( 2.) Notwithstanding any other 23 provision of law to the contrary, except as provided in subsection ( 24 3 ) of this section, whenever a state agency, city, county 25 or other political subdivision of the state issues a permit or license which 26 deals with the environment, the entity issuing the permit or license shall 27 take into account the effect the permitted or licensed activity will have on 28 the ground water quality of the state and it may attach conditions to the per- 29 mit or license in order to mitigate potential or actual adverse effects from 30 the permitted or licensed activity on the ground water quality of the state. 31 Nothing contained in this section shall authorize a state agency, city, county 32 or other political subdivision of the state to issue or require a permit or 33 license which it is not otherwise allowed by law to issue or require. 34 ( 3.) Except as otherwise provided 35 by the ground water quality protection plan, if a permit or license which 36 deals with the environment is required to be obtained from a state agency and 37 that agency considers the effect of the permitted or licensed activity on 38 ground water quality, after notice to other units of government which may 39 otherwise have regulatory authority over the activity which is the subject of 40 the permit or license, a city, county or other political subdivision of the 41 state shall not prohibit, limit or otherwise condition the rights of the per- 42 mittee or licensee under the permit or license on account of the effect the 43 permitted or licensed activity may have on ground water quality. 44 Nothing contained in this section shall be deemed to permit cities, coun- 45 ties or other political subdivisions of the state to regulate ground water 46 quality with respect to any activity for which another statute or other stat- 47 utes may have expressly or impliedly preempted such local ground water quality 48 regulation. 49 SECTION 29. That Section 39-128, Idaho Code, be, and the same is hereby 50 amended to read as follows: 51 39-128. APPLICABILITY -- PROMULGATION OF RULES -- ESTABLISHMENT OF ZONES 52 -- COMBUSTOR CHARGING COMPOSITION AND RECORDKEEPING -- REPORT TO LOCAL GOVERN- 29 1 MENT -- PERMIT PROCESSING. ( 1.) Except 2 as provided in subsection ( 2 ) of this section, the 3 provisions of this section shall apply to medical waste combustors with a max- 4 imum rated capacity equal to or greater than three (3) tons per day. All 5 combustors located on one (1) or more contiguous or adjacent properties and 6 owned or operated by the same person or persons under common control shall be 7 considered in determining the maximum rated capacity of a combustor. 8 ( 2.) The department is hereby 9 directedto develop and propose, and the board is hereby directed10 to adopt, rulesand regulationscontrolling emissions of air 11 contaminants from all medical waste combustors, and implementing the provi- 12 sions of this section except the provisions of subsections ( 13 8 ) and ( 9 ) . 14 ( 3.) The following zones are 15 hereby established: 16 ( a.) Zone 1, consisting of the 17 counties of Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, 18 Lewis, Nez Perce and Shoshone. 19 ( b.) Zone 2, consisting of the 20 counties of Ada, Adams, Boise, Canyon, Elmore, Gem, Owyhee, Payette, Val- 21 ley and Washington. 22 ( c.) Zone 3, consisting of the 23 counties of Bannock, Bear Lake, Bingham, Blaine, Bonneville, Butte, Camas, 24 Caribou, Cassia, Clark, Custer, Franklin, Fremont, Gooding, Jefferson, Je- 25 rome, Lemhi, Lincoln, Madison, Minidoka, Oneida, Power, Teton and Twin 26 Falls. 27 ( 4.) Any county may petition the 28 director to become incorporated into an adjacent zone. The director shall 29 grant the petition provided it does not conflict with the purposes of this 30 act, or any rule,regulation,permit or order issued or promul- 31 gated pursuant to this act. 32 ( 5.) For any combustor constructed 33 or modified after the date of enactment of this section, no less than seventy 34per centpercent (70%) of the weight of the material 35 charged into the combustor on an annual basis shall be material generated 36 inside the zone in which the combustor is located. 37 ( 6.) An owner or operator of a 38 combustor constructed and operated prior to the date of enactment of this sec- 39 tion shall, by October 1, 1992, notify the department in writing describing 40 the type, location and maximum rated capacity of the combustor. 41 ( 7.) Any person who owns or oper- 42 ates a combustor shall keep records as to the source, weight and type of mate- 43 rial charged, and whether the material was generated within or outside the 44 zone in which the combustor is located. These records shall be maintained for 45 a period of not less than five (5) years and shall be made available to the 46 department upon request. The requirements of this subsection may be fully or 47 partially waived by the director if the owner or operator certifies to the 48 department that no material generated outside the zone shall be charged into 49 the combustor. 50 ( 8.) Any person proposing to con- 51 struct or modify a combustor shall provide, in writing, to the local govern- 52 ment a comprehensive report which shall include: 53 ( a.) An overall description of the 54 project; 55 ( b.) The amount, type and disposal 30 1 method of all solid waste produced; 2 ( c.) The amount and content of any 3 liquid to be discharged into the sewer system, applied to the land, or 4 discharged into an impoundment or pond; 5 ( d.) The amount, type and control 6 of air emissions; 7 ( e.) The effect of the facility on 8 vehicular traffic; 9 ( f.) The amount of noise produced 10 by the facility; 11 ( g.) The extent and control of 12 odors from the facility; and 13 ( h.) Any additional information 14 requested, in writing, by the local government pertaining to the effect of 15 the proposed facility upon the community or local resources. 16 ( 9.) The local government shall 17 conduct at least one (1) public hearing regarding any proposal to construct or 18 modify a combustor within the jurisdiction of the local government at which 19 interested persons shall have an opportunity to be heard. At least fifteen 20 (15) days prior to the hearing, notice of the time and place of the hearing, a 21 brief summary of the proposal, and the location of the comprehensive report 22 required by the provisions of subsection ( 8 ) of this 23 section, shall be published in a newspaper of general circulation within the 24 jurisdiction of the local government. The local government shall, after hear- 25 ing, notify in writing the person proposing to construct or modify the 26 combustor that the proposal conforms or does not conform to applicable plan- 27 ning and zoning ordinances. Reasonable conditions may be placed on any 28 approval so as to ensure that construction or modification of the combustor is 29 in conformance with local planning and zoning ordinances and that all neces- 30 sary local, state and federal permits are obtained. 31 ( 10.) Any person applying to the 32 department for a permit to construct or modify a combustor shall submit, as 33 part of the application, the notification required in subsection ( 34 8 ) of this section indicating that the proposal conforms, 35 or conforms with conditions, to local government planning and zoning ordi- 36 nances. Any application received by the department which does not include such 37 a notification of approval or conditional approval shall be incomplete. 38 ( 11.) The director shall have 39 authority to sue in competent courts to enjoin any threatened or continuing 40 violation of the provisions of this section, or any rule,regulation,41permit or order issued or promulgated to implement the provisions of 42 this section. The court shall grant injunctive relief upon a showing that a 43 violation of the provisions of this section or any rule,regulation,44permit or order implementing the provisions of this section has 45 occurred and is reasonably likely to continue. 46 ( 12.) The director shall have the 47 authority to declare that an emergency exists and that a combustor may receive 48 a waiver to combust material generated outside the zone in which the combustor 49 is located in excess of the amount specified in subsection ( 50 5 ) of this section, provided the director finds that such 51 an action is necessary to protect human health and the environment. The waiver 52 shall not extend beyond six (6) months for any single combustor and eighteen 53 (18) months in total duration. 54 ( 13.) For purposes of this section 55 only: 31 1 ( a.) The term "combustor" means a 2 medical waste combustor as defined in section 39-103, Idaho Code. 3 ( b.) The term "local government" 4 means the city government for the city in which the combustor is to be 5 located or, if the combustor is to be located outside the limits of an 6 incorporated city, the county government for the county in which the 7 combustor is to be located. 8 SECTION 30. That Section 39-129, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 39-129. APPLICABILITY -- DEFINITION OF LOCAL GOVERNMENT AND MANDATES -- 11 AUTHORIZATION FOR LOCAL GOVERNMENT AGREEMENTS -- ADOPTION OF RULES -- ESTAB- 12 LISHMENT OF SCHEDULES -- PRIORITY OF CONSIDERATIONS -- REPORT AND RECOMMENDA- 13 TIONS. (1) The provisions of this section shall apply to local governments 14 providing drinking water, municipal waste disposal, municipal sewage or waste 15 water disposal or treatment, or air pollution abatement, which can demonstrate 16 to the satisfaction of the department that increasing and cumulative regula- 17 tory requirements applicable to such services cannot be met in a timely and 18 reasonable manner. The provisions of the section do not apply where prohibited 19 by federal or state laws or regulations for the protection of human health and 20 the environment. 21 (2) For purposes of this section the term "local government" means the 22 government of a county or incorporated city, and the term "federal mandates" 23 means those requirements arising from federal statutes or subsequent regula- 24 tions administered by the United States environmental protection agency. 25 (3) The department is hereby authorized to enter into agreements with 26 local governments. The agreement may include a binding schedule enforceable 27 under this chapter for the improvement, modification, construction, or other 28 actions, necessary in order for the local government to come into compliance 29 as expeditiously as practicable with human health and environmental protection 30 statutes and rules stemming from federal mandates. 31 (4) The department maypropose, and the boardadopt,32rules necessary for the implementation of this section. 33 (5) In establishing any local government agreement schedule, the term of 34 the agreement shall not exceed fifteen (15) years, although successive agree- 35 ments may be entered into. All agreements must be signed by the director or 36 his designee and the mayor of the city or county commissioners of the county, 37 as appropriate. All agreements are enforceable as orders under the provisions 38 of this chapter. 39 (6) Agreements and schedules entered into under this act shall take into 40 account, in descending priority the: 41 (a) Protection of public health; 42 (b) Protection of the environment; 43 (c) Current tax structure and rates as compared to other local 44 governments:; 45 (d) Ability of the local government to pay for costs of compliance; 46 (e) Current fiscal obligations of the local government; 47 (f) Other factors as determined by the department .or48the board.49(7) The department is directed to conduct a study in cooperation with50local governments, with emphasis on smaller cities, of cumulative public51health and environmental mandates imposed by the United States environmental52protection agency. The department shall provide a written and oral report to53the 1995 regular session of the legislature describing methods and results of32 1the study, along with recommendations as to how cumulative public health and2environmental mandates may be implemented so as to most efficiently and prac-3tically protect human health and the environment within the capabilities of4local government. The emphasis of the study shall be to investigate and report5on:6(a) The fiscal impacts of cumulative mandates;7(b) The relative public health and environmental protection priorities;8(c) The optimum content and structure of local government agreements;9(d) The methods, current and proposed, available to local government for10meeting the requirements of federal mandates most efficiently taking into11account local public health, environmental and fiscal considerations.1213 SECTION 31. That Section 39-417, Idaho Code, be, and the same is hereby 14 amended to read as follows: 15 39-417. HEARINGS BY DISTRICT BOARD -- OATHS -- WITNESSES -- SUBPOENAS. 16 (1) Any person, association, public or private agency, corporation, or the 17 district director alleging a violation of this act, the rulesand regu-18lationspromulgated thereunder, or any matter within the jurisdiction 19 of the district board, or any alleged violator thereof, may, pursuant to the 20 provisions of chapter 52, title 67, Idaho Code, and the rulesand regu-21lationspromulgated thereunder by thestate board of health and22welfaredepartment of environmental quality , seek a hear- 23 ing before the district board and/or such other relief or remedy as is pro- 24 vided or available. 25 (2) The hearings herein provided may be conducted by the district board 26 or by its designated agent and in either case the district board or its agent 27 shall have the same powers and authority set out in subsection (4285 ) of section 39-1076 , Idaho 29 Code. The provisions of this section shall not apply to the internal adminis- 30 trative affairs of the district board or department nor to its subordinate 31 sections and units. 32 SECTION 32. That Section 42-202B, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 42-202B. DEFINITIONS. Whenever used in this chapter, the term: 35 (1) "Consumptive use" means that portion of the annual volume of water 36 diverted under a water right that is transpired by growing vegetation, evapo- 37 rated from soils, converted to nonrecoverable water vapor, incorporated into 38 products, or otherwise does not return to the waters of the state. Consumptive 39 use does not include any water that falls as precipitation directly on the 40 place of use unless the precipitation is captured, controlled and used under 41 an appurtenant water right. 42 (2) "Municipality" means a city incorporated under section 50-102, Idaho 43 Code, a county, or the state of Idaho acting through a department or institu- 44 tion. 45 (3) "Municipal provider" means: (a) a municipality that provides water 46 for municipal purposes to its residents and other users within its service 47 area; (b) any corporation or association holding a franchise to supply water 48 for municipal purposes, or a political subdivision of the state of Idaho 49 authorized to supply water for municipal purposes, and which does supply 50 water, for municipal purposes to users within its service area; or (c) a cor- 51 poration or association which supplies water for municipal purposes through a 33 1 water system regulated by the state of Idaho as a "public water supply" as 2 described in section 39-103(150 ), Idaho Code. 3 (4) "Municipal purposes" refers to water for residential, commercial, 4 industrial, irrigation of parks and open space, and related purposes, exclud- 5 ing use of water from geothermal sources for heating, which a municipal pro- 6 vider is entitled or obligated to supply to all those users within a service 7 area, including those located outside the boundaries of a municipality served 8 by a municipal provider. 9 (5) "Planning horizon" refers to the length of time that the department 10 determines is reasonable for a municipal provider to hold water rights to meet 11 reasonably anticipated future needs. The length of the planning horizon may 12 vary according to the needs of the particular municipal provider. 13 (6) "Reasonably anticipated future needs" refers to future uses of water 14 by a municipal provider for municipal purposes within a service area which, on 15 the basis of population and other planning data, are reasonably expected to be 16 required within the planning horizon of each municipality within the service 17 area not inconsistent with comprehensive land use plans approved by each 18 municipality. Reasonably anticipated future needs shall not include uses of 19 water within areas overlapped by conflicting comprehensive land use plans. 20 (7) "Service area" means that area within which a municipal provider is 21 or becomes entitled or obligated to provide water for municipal purposes. For 22 a municipality, the service area shall correspond to its corporate limits, or 23 other recognized boundaries, including changes therein after the permit or 24 license is issued. The service area for a municipality may also include areas 25 outside its corporate limits, or other recognized boundaries, that are within 26 the municipality's established planning area if the constructed delivery sys- 27 tem for the area shares a common water distribution system with lands located 28 within the corporate limits. For a municipal provider that is not a municipal- 29 ity, the service area shall correspond to the area that it is authorized or 30 obligated to serve, including changes therein after the permit or license is 31 issued. 32 SECTION 33. That Section 50-1328, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 50-1328. RULES FOR THE ADMINISTRATION AND ENFORCEMENT OF SANITARY 35 RESTRICTION. Thestate board of health and welfaredepart- 36 ment of environmental quality may adopt rules pursuant to section 37 39-1075(8), Idaho Code, includ- 38 ing adoption of sanitary standards necessary for administration and enforce- 39 ment, pursuant to section 39-108, Idaho Code, of sections 50-1326 through 40 50-1329, Idaho Code. The rules and standards shall provide the basis for 41 approving subdivision plats for various types of water and sewage facilities, 42 both public and individual, and may be related to size of lots, contour of 43 land, porosity of soil, ground water level, pollution of water, type of con- 44 struction of water and sewage facilities, and other factors for the protection 45 of the public health or the environment. 46 SECTION 34. That Section 57-1701, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 57-1701. CREATION OF CENTRAL CANCER REGISTRY FUND -- PURPOSE. There is 49 hereby created and established in the state treasury a fund to be known as the 50 "central cancer registry fund" to which shall be deposited the revenues 51 derived from the tax imposed in section 63-2506, Idaho Code. All moneys now or 34 1 hereafter in the central cancer registry fund are hereby dedicated for the 2 purpose of contracting for and obtaining the services of a continuous registry 3 of all cancer patients in the state of Idaho and maintaining cooperative 4 exchange of information with other states providing similar cancer registry. 5 Thestate boarddepartment of health and 6 welfare, created in section 39-107, Idaho Code,is charged with 7 the administration of this fund for the purposes specified herein. The amount 8 of money credited to the central cancer registry fund from the tax imposed in 9 section 63-2506, Idaho Code, shall not exceed the distribution provided in 10 section 63-2520(b)(3), Idaho Code, and the current fiscal year's appropria- 11 tion, and any moneys in excess thereof derived from this tax shall be credited 12 to the general fund. All claims against the fund shall be examined, audited 13 and allowed in the manner now or hereafter provided by law for claims against 14 the state of Idaho. 15 SECTION 35. That Title 56, Idaho Code, be, and the same is hereby amended 16 by the addition thereto of a NEW CHAPTER , to be known and desig- 17 nated as Chapter 10, Title 56, Idaho Code, and to read as follows: 18 CHAPTER 10 19 DEPARTMENT OF HEALTH AND WELFARE 20 56-1001. DEFINITIONS. Whenever used or referred to in this chapter, 21 unless a different meaning clearly appears from the context, the following 22 terms shall have the following meanings: 23 (1) "Department" means the department of health and welfare. 24 (2) "Director" means the director of the department of health and wel- 25 fare. 26 (3) "State" means the state of Idaho. 27 (4) "Laboratory" means not only facilities for biological, serological, 28 biophysical, cytological and pathological tests, but also facilities for the 29 chemical or other examination of materials from water, air or other sub- 30 stances. 31 (5) "Person" means any individual, association, partnership, firm, joint 32 stock company, trust, estate, political subdivision, public or private corpo- 33 ration, state or federal governmental department, agency or instrumentality, 34 or any other legal entity which is recognized by law as the subject of rights 35 and duties. 36 (6) "Substantive" means that which creates, defines or regulates the 37 rights of any person or implements, interprets or prescribes law or policy, 38 but does not include statements concerning only the internal management of the 39 department and not affecting private rights or procedures available to the 40 public. 41 56-1002. DEPARTMENT OF HEALTH AND WELFARE -- CREATION -- ADMINISTRATIVE 42 REGIONS. (1) There is created and established in the state government a 43 department of health and welfare which shall, for the purposes of section 20, 44 article IV, of the constitution of the state of Idaho, be an executive depart- 45 ment of the state government. The executive and administrative power of this 46 department shall be vested in the director of the department who shall be 47 appointed and serve at the pleasure of the governor, with the advice and con- 48 sent of the senate. 49 (2) The department shall be organized into such administrative and gen- 50 eral services divisions as may be necessary in order to efficiently administer 35 1 the department. Each division shall be headed by a division administrator who 2 shall be appointed by and serve at the pleasure of the director. 3 (3) In order to provide more effective and economical access to the state 4 health, and social services by the people of Idaho, the governor is hereby 5 authorized to establish substate administrative regions. In the designation of 6 these regions specific consideration shall be given to the geographic and eco- 7 nomic convenience of the citizens included therein. Each substate administra- 8 tive region shall be headed by a regional director who shall be appointed by 9 and serve at the pleasure of the director. 10 56-1003. POWERS AND DUTIES OF THE DIRECTOR. The director shall have the 11 following powers and duties: 12 (1) All of the powers and duties of the department of public health, the 13 department of health, the board of health and welfare, and all non- 14 environmental protection duties of the board of health and welfare are hereby 15 transferred to the director of the department of health and welfare. The 16 director shall have all such powers and duties as may have been or could have 17 been exercised by his predecessors in law, including the authority to adopt, 18 promulgate, and enforce rules and shall be the successor in law to all con- 19 tractual obligations entered into by predecessors in law. All rulemaking pro- 20 ceedings and hearings of the director shall be governed by the provisions of 21 chapter 52, title 67, Idaho Code. 22 (2) The director shall, pursuant and subject to the provisions of the 23 Idaho Code, and the provisions of this act, formulate rules, codes and stan- 24 dards, as may be necessary to deal with problems related to personal health, 25 and licensure and certification requirements pertinent thereto, which shall, 26 upon adoption, have the force of law relating to any purpose which may be nec- 27 essary and feasible for enforcing the provisions of this chapter, including, 28 but not limited to the maintenance and protection of personal health. Any such 29 rule or standard may be of general application throughout the state or may be 30 limited as to times, places, circumstances or conditions in order to make due 31 allowance for variations therein. 32 (3) The director, under the rules, codes or standards adopted by him, 33 shall have the general supervision of the promotion and protection of the 34 life, health and mental health of the people of this state. The powers and 35 duties of the director shall include, but not be limited to the following: 36 (a) The issuance of licenses and permits as prescribed by law and by the 37 rules of the department; 38 (b) The supervision and administration of laboratories and the supervi- 39 sion and administration of standards of tests for environmental pollution, 40 chemical analyses and communicable diseases. The director may require that 41 laboratories operated by any city, county, institution, person, firm or 42 corporation for health conform to standards set by the department; 43 (c) The supervision and administration of a mental health program, which 44 shall include services for the evaluation, screening, custody and treat- 45 ment of the mentally ill and those persons suffering from a mental defect, 46 or mental defects; 47 (d) The supervision and administration of the various schools, hospitals 48 and institutions that were the responsibility of the board of health and 49 welfare; 50 (e) The supervision and administration of services dealing with the prob- 51 lems of alcoholism including, but not limited to, the care and rehabilita- 52 tion of persons suffering from alcoholism; 53 (f) The establishment of liaison with other governmental departments, 54 agencies and boards in order to effectively assist other governmental 36 1 entities with the planning for the control of or abatement of health 2 problems. All of the rules and standards adopted hereunder shall apply to 3 state institutions; 4 (g) The supervision and administration of an emergency medical service 5 program including, but not limited to, assisting other governmental agen- 6 cies and local governmental units, in providing first aid emergency medi- 7 cal services and for transportation of the sick and injured; 8 (h) The supervision and administration of administrative units whose 9 responsibility shall be to assist and encourage counties, cities, other 10 governmental units, and industries in the control of and/or abatement of 11 health problems; 12 (i) The enforcement of all laws, rules, codes and standards relating to 13 health. 14 (4) The director, when so designated by the governor, shall have the 15 power to apply for, receive on behalf of the state, and utilize any federal 16 aid, grants, gifts, gratuities, or moneys made available through the federal 17 government. 18 (5) The director shall have the power to enter into and make contracts 19 and agreements with any public agencies or municipal corporations for facili- 20 ties, land, and equipment when such use will have a beneficial, recreational, 21 or therapeutic effect or be in the best interest in carrying out the duties 22 imposed upon the department. 23 The director shall also have the power to enter into contracts for the 24 expenditure of state matching funds for local purposes. This subsection will 25 constitute the authority for public agencies or municipal corporations to 26 enter into such contracts and expend money for the purposes delineated in such 27 contracts. 28 (6) The director is authorized to adopt an official seal to be used on 29 appropriate occasions, in connection with the functions of the department, and 30 such seal shall be judicially noticed. Copies of any books, records, papers 31 and other documents in the department shall be admitted in evidence equally 32 with the originals thereof when authenticated under such seal. 33 56-1004. DIRECTOR -- ADDITIONAL POWERS AND DUTIES. (1) The director shall 34 exercise the following powers and duties in addition to all other powers and 35 duties inherent in the position: 36 (a) Prescribe such rules as may be necessary for the administration of 37 the department, the conduct and duties of the employees, the orderly and 38 efficient management of department business, and the custody, use and 39 preservation of department records, papers, books and property belonging 40 to the state; 41 (b) Employ such personnel as may be deemed necessary, prescribe their 42 duties and fix their compensation within the limits provided by the state 43 personnel system law; 44 (c) Administer oaths for all purposes required in the discharge of his 45 duties; 46 (d) Prescribe the qualifications of all personnel of the department on a 47 nonpartisan merit basis, in accordance with the Idaho personnel system 48 law, provided however, that the administrators in charge of any division 49 of the department, and the administrators in charge of the state veterans 50 homes, state hospital north, state hospital south, and Idaho state school 51 and hospital shall serve at the pleasure of the director; 52 (e) Create such units, sections and subdivisions as are or may be neces- 53 sary for the proper and efficient functioning of the department. 54 (2) The department is empowered to acquire, by purchase, lease or 37 1 exchange, any property which in the judgment of the department is needful for 2 the operation of the facilities and programs for which it is responsible and 3 to dispose of, by sale, lease or exchange, any property which in the judgment 4 of the department is not needful for the operation of the same. 5 (3) The director, in furtherance of its duties under this act and under 6 its rules, shall have the power to administer oaths, certify to official acts, 7 and to issue subpoenas for the attendance of witnesses and the production of 8 papers, books, accounts, documents and testimony. The director may, if a wit- 9 ness refuses to attend or testify, or to produce any papers required by such 10 subpoenas, report to the district court in and for the county in which the 11 proceeding is pending, by petition, setting forth that due notice has been 12 given of the time and place of attendance of said witnesses, or the production 13 of said papers, that the witness has been properly summoned, and that the wit- 14 ness has failed and refused to attend or produce the papers required by this 15 subpoena before the director, or has refused to answer questions propounded to 16 him in the course of said proceedings, and ask an order of said court compel- 17 ling the witness to attend and testify and produce said papers before the 18 department. The court, upon the petition of the director, shall enter an order 19 directing the witness to appear before the court at a time and place to be 20 fixed by the court in such order, the time to be not more than ten (10) days 21 from the date of the order, and then and there shall show cause why he has not 22 attended and testified or produced said papers before the department. A copy 23 of said order shall be served upon said witness. If it shall appear to the 24 court that said subpoena was regularly issued by the department and regularly 25 served, the court shall thereupon order that said witness appear before the 26 department at the time and place fixed in said order, and testify or produce 27 the required papers. Upon failure to obey said order, said witness shall be 28 dealt with for contempt of court. 29 (4) The director, his designee, or any party to the action may, in an 30 investigation or hearing before the department, cause the deposition or inter- 31 rogatory of witnesses or parties residing within or without the state, to be 32 taken in the manner prescribed by law for like depositions and interrogatories 33 in civil actions in the district court of this state, and to that end may com- 34 pel the attendance of said witnesses and production of books, documents, 35 papers and accounts. 36 (5) Any person adversely affected by a final determination of the direc- 37 tor, may secure judicial review by filing a petition for review as prescribed 38 under the provisions of chapter 52, title 67, Idaho Code. The petition for 39 review shall be served upon the director, the director of the department, and 40 upon the attorney general of the state of Idaho. Such service shall be juris- 41 dictional and the provisions of this section shall be the exclusive procedure 42 for appeal. 43 (6) The director may adopt, amend or repeal the rules, codes, and stan- 44 dards of the department, that are necessary and feasible in order to carry out 45 the purposes and provisions of this act and to enforce the laws of this state. 46 The rules and orders so adopted and established shall have the force and 47 effect of law and may deal with any matters deemed necessary and feasible for 48 protecting the health and welfare of the people of the state. 49 (7) All rulemaking proceedings and hearings of the department shall be 50 governed by the provisions of chapter 52, title 67, Idaho Code. 51 (8) All authority and powers lawfully transferred to the department by 52 law shall remain in effect. 53 56-1005. INVESTIGATION -- INSPECTION -- RIGHT OF ENTRY -- VIOLATION -- 54 ENFORCEMENT -- PENALTY -- INJUNCTIONS. (1) The director shall cause investiga- 38 1 tions to be made upon receipt of information concerning an alleged violation 2 of this act or of any rule, permit or order promulgated thereunder, and may 3 cause to be made such other investigations as the director shall deem advis- 4 able. 5 (2) For the purpose of enforcing any provision of this chapter or any 6 rule authorized in this chapter, the director or the director's designee shall 7 have the authority to: 8 (a) Conduct a program of continuing surveillance and of regular or peri- 9 odic inspection of actual or potential health hazards; 10 (b) Enter at all reasonable times upon any private or public property, 11 upon presentation of appropriate credentials, for the purpose of inspect- 12 ing or investigating to ascertain possible violations of this act or of 13 rules, permits or orders adopted and promulgated by the director; 14 (c) All inspections and investigations conducted under the authority of 15 this chapter shall be performed in conformity with the prohibitions 16 against unreasonable searches and seizures contained in the fourth amend- 17 ment to the constitution of the United States and section 17, article I, 18 of the constitution of the state of Idaho. The state shall not, under the 19 authority granted by this chapter, conduct warrantless searches of private 20 property in the absence of either consent from the property owner or occu- 21 pier or exigent circumstances such as a public health emergency; 22 (d) Any district court in and for the county in which the subject prop- 23 erty is located is authorized to issue a search warrant to the director 24 upon a showing of (i) probable cause to suspect a violation, or (ii) the 25 existence of a reasonable program of inspection. Any search warrant issued 26 under the authority of this chapter shall be limited in scope to the spe- 27 cific purposes for which it is issued and shall state with specificity the 28 manner and the scope of the search authorized. 29 (3) Whenever the director determines that any person is in violation of 30 any provision of this act or any rule, permit or order issued or promulgated 31 pursuant to this act, the director may commence either of the following: 32 (a) Administrative enforcement action. 33 (i) Notice. The director may commence an administrative enforcement 34 action by issuing a written notice of violation. The notice of viola- 35 tion shall identify the alleged violation with specificity, shall 36 specify each provision of the act, rule, permit or order which has 37 been violated, and shall state the amount of civil penalty claimed 38 for each violation. The notice of violation shall inform the person 39 to whom it is directed of an opportunity to confer with the director 40 or the director's designee in a compliance conference concerning the 41 alleged violation. A written response may be required within fifteen 42 (15) days of receipt of the notice of violation by the person to whom 43 it is directed. 44 (ii) Scheduling compliance conference. If a recipient of a notice of 45 violation contacts the department within fifteen (15) days of the 46 receipt of the notice, the recipient shall be entitled to a compli- 47 ance conference. The conference shall be held within twenty (20) days 48 of the date of receipt of the notice, unless a later date is agreed 49 upon between the parties. If a compliance conference is not 50 requested, the director may proceed with a civil enforcement action 51 as provided in paragraph (b) of this subsection. 52 (iii) Compliance conference. The compliance conference shall provide 53 an opportunity for the recipient of a notice of violation to explain 54 the circumstances of the alleged violation and, where appropriate, to 55 present a proposal for remedying damage caused by the alleged viola- 39 1 tion and assuring future compliance. 2 (iv) Consent order. If the recipient and the director agree on a 3 plan to remedy damage caused by the alleged violation and to assure 4 future compliance, they may enter into a consent order formalizing 5 their agreement. The consent order may include a provision providing 6 for payment of any agreed civil penalty. 7 (v) Effect of consent order. A consent order shall be effective 8 immediately upon signing by both parties and shall preclude any civil 9 enforcement action for the same alleged violation. If a party does 10 not comply with the terms of the consent order, the director may seek 11 and obtain, in any appropriate district court, specific performance 12 of the consent order and such other relief as authorized in this 13 chapter. 14 (vi) Failure to reach consent order. If the parties cannot reach 15 agreement on a consent order within sixty (60) days after the receipt 16 of the notice of violation or if the recipient does not request a 17 compliance conference as per paragraph (a)(ii) of this subsection, 18 the director may commence and prosecute a civil enforcement action in 19 district court, in accordance with paragraph (b) of this subsection. 20 (b) Civil enforcement action. The director may initiate a civil enforce- 21 ment action through the attorney general as provided in section 56-1006, 22 Idaho Code. Civil enforcement actions shall be commenced and prosecuted in 23 the district court in and for the county in which the alleged violation 24 occurred, and may be brought against any person who is alleged to have 25 violated any provision of this act or any rule, permit or order which has 26 become effective pursuant to this act. Such action may be brought to com- 27 pel compliance with any provision of this act or with any rule, permit or 28 order promulgated hereunder and for any relief or remedies authorized in 29 this act. The director shall not be required to initiate or prosecute an 30 administrative action before initiating a civil enforcement action. 31 (4) No civil or administrative proceeding may be brought to recover for a 32 violation of any provision of this chapter or a violation of any rule, permit 33 or order issued or promulgated pursuant to this chapter, more than two (2) 34 years after the director had knowledge or ought reasonably to have had knowl- 35 edge of the violation. 36 (5) Monetary penalties. 37 (a) Any person determined in a civil enforcement action to have violated 38 any provision of this act or any rule, permit or order promulgated pursu- 39 ant to this act shall be liable for a civil penalty not to exceed ten 40 thousand dollars ($10,000) per violation or one thousand dollars ($1,000) 41 for each day of a continuing violation, whichever is greater. The method 42 of recovery of said penalty shall be by a civil enforcement action in the 43 district court in and for the county where the violation occurred. All 44 civil penalties collected under this act shall be paid into the general 45 fund of the state. Parties to an administrative enforcement action may 46 agree to a civil penalty as provided in this subsection. 47 (b) The imposition or computation of monetary penalties may take into 48 account the seriousness of the violation, good faith efforts to comply 49 with the law, and an enforceable commitment by the person against whom the 50 penalty is directed to implement a supplemental project. For purposes of 51 this section, "supplemental project" means a project which the person is 52 not otherwise required to perform and which prevents potential or actual 53 health problems. In evaluating a particular supplemental project pro- 54 posal, preference may be given to those projects with a benefit which 55 relates to the violation or the objectives of the underlying statute which 40 1 was violated or which enhances the quality of the public health in the 2 general geographic location where the violation occurred. 3 (6) In addition to such civil penalties, any person who has been deter- 4 mined to have violated the provisions of this act or the rules, regulations, 5 permits or orders promulgated thereunder, shall be liable for any expense 6 incurred by the state in enforcing the act, or in enforcing or terminating any 7 nuisance, source or cause of sickness, or health hazard. 8 (7) No action taken pursuant to the provisions of this act or health law 9 shall relieve any person from any civil action and damages that may exist for 10 injury or damage resulting from any violation of this act or of the rules, 11 permits and orders promulgated thereunder. 12 (8) In addition to, and notwithstanding other provisions of this act, in 13 circumstances of emergency creating conditions of imminent and substantial 14 danger to the public health, the prosecuting attorney or the attorney general 15 may institute a civil action for an immediate injunction to halt any activity 16 in violation of provisions of this act or rules, permits and orders promul- 17 gated thereunder. In such action the court may issue an ex parte restraining 18 order. 19 56-1006. COMMENCEMENT OF CIVIL ENFORCEMENT ACTIONS -- CRIMINAL ACTIONS 20 AUTHORIZED -- DUTIES OF ATTORNEY GENERAL. Upon request of the director, it 21 shall be the duty of the attorney general to institute and prosecute civil 22 enforcement actions or injunctive actions as provided in section 56-1005, 23 Idaho Code, and to prosecute actions or proceedings for the enforcement of any 24 criminal provisions of this chapter. In addition, when deemed by the director 25 to be necessary, the director may retain or employ private counsel. The attor- 26 ney general may delegate the authority and duty under this section to prose- 27 cute criminal actions to the prosecuting attorney of the county in which such 28 a criminal action may arise. 29 56-1007. ADMINISTRATOR, DEPARTMENT OR BOARD OF HEALTH NOW DEEMED DIREC- 30 TOR, DEPARTMENT OF HEALTH AND WELFARE, RESPECTIVELY. Except with respect to 31 environmental protection functions, wherever the words board of health or 32 board of health and welfare appear in the Idaho Code, they shall mean the 33 director of the department of health and welfare, and wherever the words 34 administrator of health appear in the Idaho Code, they shall mean the director 35 of the department of health and welfare, and wherever the words department of 36 health appear in the Idaho Code, they shall mean the department of health and 37 welfare. 38 56-1008. COMPLIANCE SCHEDULES. The director shall have the authority to 39 issue schedule orders to any person who is the source of any health hazard or 40 noise for which regulatory standards have been established, including regula- 41 tory standards then in effect or to become effective at a future date or at 42 future successive dates. The purpose of any compliance schedule order shall be 43 to identify and establish appropriate acts and time schedules for interim 44 actions by those persons who are or who will be affected by regulatory stan- 45 dards, such acts and schedules being designed to assure timely compliance by 46 those affected by the regulatory standards. The director shall solicit the 47 cooperation of the person to whom the compliance schedule order will be 48 directed in the selection of the terms of such order. Any compliance schedule 49 order shall become a final order enforceable in the same manner as any order 50 entered pursuant to section 56-1005, Idaho Code. 51 56-1009. COLLECTION OF FEES FOR SERVICES. The department of health and 41 1 welfare is hereby authorized to charge and collect reasonable fees, estab- 2 lished by standards formulated by the board of health and welfare, for any 3 service rendered by the department. The fee may be determined by a sliding 4 scale according to income or available assets. The department is hereby autho- 5 rized to require information concerning the total income and assets of each 6 person receiving services in order to determine the amount of fee to be 7 charged. 8 56-1010. CRIMINAL VIOLATION -- PENALTY. Any person who willfully or neg- 9 ligently violates any of the provisions of the public health or the terms of 10 any lawful notice, order, permit, standard, rule or regulation issued pursuant 11 thereto, shall be guilty of a misdemeanor, and upon conviction thereof shall 12 be punished by a fine of not more than ten thousand dollars ($10,000) for each 13 separate violation or one thousand dollars ($1,000) per day for continuing 14 violations, whichever is greater. 15 SECTION 36. That 39-166, Idaho Code, as added by Section 1, Chapter 204, 16 Laws of 1996, be, and the same is hereby amended to read as follows: 17 39-16671 . LEGISLATIVE FINDINGS AND PURPOSE. 18 The legislature of the state of Idaho finds that: 19 (1) Wood and mill yard debris is a byproduct of wood processing and manu- 20 facturing; and 21 (2) If properly managed, wood and mill yard debris can be put to uses 22 that have economic and environmental benefits; and 23 (3) There is a need for guidance about how to manage, store, use or dis- 24 pose of wood and mill yard debris so that nuisance and adverse environmental 25 impacts are minimized; and 26 (4) This guidance will enable the department and local units of govern- 27 ment to more effectively regulate the use or disposal of wood and mill yard 28 debris. 29 The purpose of this act is to provide guidance for the sound use, storage, 30 management and disposal of wood and mill yard debris by requiring the director 31 of the department ofhealth and welfareenvironmental qual- 32 ity to appoint a committee to study the issues and to gather and dis- 33 seminate information to persons and entities that deal with wood and mill yard 34 debris. 35 SECTION 37. That section 39-167, Idaho Code, as added by Section 2, Chap- 36 ter 204, Laws of 1996, be, and the same is amended to read as follows: 37 39-167 2 . DEFINITIONS. For purposes of this act: 38 (1) "Committee" means the wood and mill yard debris committee. 39 (2) "Director" means the director of the Idaho department ofhealth40and welfareenvironmental quality . 41 (3) "Wood or mill yard debris" means solid wood, bark, or wood fiber gen- 42 erated from the process of manufacturing wood products that may include compo- 43 nents of soil, rock or moisture, and for which the use, management, storage or 44 final disposition is approved pursuant to this act.
STATEMENT OF PURPOSE
RS07838C2
The purpose of this legislation is to create and establish the
Department of Environmental Quality. The goals to protect human
health and the environment can best be achieved by vesting
responsibility for environmental protection in a single state
department which has as its sole mission the protection of
human health and the environment for the State of Idaho and its
residents.
This legislation transfers to the Department of Environmental
Quality and its Director all rights, powers, duties, budgets,
funds, contracts, rule-making proceedings, administrative
proceedings, contested cases, civil actions, and other matters
relating to environmental protection as described in the
legislation, now vested in the Director of the Department of
Health and Welfare and the Board of Health and Welfare.
FISCAL IMPACT
None.
CONTACT
Name: Wallace Cory and Jon Sandoval
Agency: Division of Environmental Quality
Phone: 373-0502
H 772