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S1426aa....................................................by STATE AFFAIRS ENVIRONMENTAL QUALITY - Amends, adds to and repeals existing law to create a Department of Environmental Quality and Board of Environmental Quality separate from the Department of Health and Welfare. 02/15 Senate intro - 1st rdg - to printing 02/16 Rpt prt - to St Aff 02/25 Rpt out - rec d/p - to 2nd rdg 02/28 2nd rdg - to 3rd rdg 02/29 To 14th Ord 03/01 Rpt out amen - to engros 03/02 Rpt engros - 1st rdg - to 2nd rdg as amen 03/03 2nd rdg - to 3rd rdg as amen 03/09 3rd rdg as amen - PASSED - 31-0-4 AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Ingram, Ipsen, Keough, Lee, Noh, Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner, Thorne, Walton/Branch, Wheeler, Whitworth, Williams NAYS--None Absent and excused--Hawkins, King-Barrutia, McLaughlin, Stennett Floor Sponsor - President Pro Tem Geddes Title apvd - to House 03/10 House intro - 1st rdg as amen - to Env Aff 03/15 Rpt out - rec d/p - to 2nd rdg as amen 03/16 2nd rdg - to 3rd rdg as amen 03/23 3rd rdg as amen - PASSED - 65-0-5 AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Boe, Bruneel, Callister, Campbell, Chase, Cheirrett, Clark, Cuddy, Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes, Gould, Hadley, Hammond, Hansen(23), Hansen(29), Hornbeck, Jaquet, Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Linford, Loertscher, Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman, Trail, Wheeler, Zimmermann, Mr Speaker NAYS -- None Absent and excused -- Black, Crow, Deal, Henbest, Wood Floor Sponsors - Barraclough, Newcomb Title apvd - to Senate 03/24 To enrol 03/27 Rpt enrol - Pres signed - Sp signed 03/28 To Governor 03/31 Governor signed Session Law Chapter 132 Effective: 07/01/00 with one-year implementation concession
S1426|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000IN THE SENATE SENATE BILL NO. 1426, As Amended BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO A DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 67-2402, 3 IDAHO CODE, TO PROVIDE A DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE EXECU- 4 TIVE BRANCH OF STATE GOVERNMENT; AMENDING SECTION 67-2406, IDAHO CODE, TO 5 PROVIDE FOR A DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMEND- 6 ING SECTION 59-904, IDAHO CODE, TO PROVIDE FOR APPOINTMENT OF A DIRECTOR 7 OF ENVIRONMENTAL QUALITY AND THE BOARD OF ENVIRONMENTAL QUALITY; AMENDING 8 CHAPTER 1, TITLE 39, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 39-102A, 9 IDAHO CODE, TO PROVIDE LEGISLATIVE INTENT IN CREATING THE DEPARTMENT OF 10 ENVIRONMENTAL QUALITY; AMENDING SECTION 39-103, IDAHO CODE, TO REVISE DEF- 11 INITIONS; AMENDING SECTION 39-104, IDAHO CODE, TO PROVIDE FOR THE CREATION 12 OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 39-104A, 13 IDAHO CODE, TO PROVIDE REFERENCE TO THE DEPARTMENT OF ENVIRONMENTAL QUAL- 14 ITY; AMENDING SECTION 39-105, IDAHO CODE, TO PROVIDE POWERS AND DUTIES OF 15 THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO MAKE TECH- 16 NICAL CORRECTIONS; AMENDING SECTION 39-106, IDAHO CODE, TO PROVIDE FOR 17 POLICIES AND PROCEDURES, TO PROVIDE ADDITIONAL POWERS AND DUTIES OF THE 18 DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO PROVIDE FOR 19 TRANSFER AND CONTINUATION OF RULES AND OTHER PROCEEDINGS; AMENDING SECTION 20 39-107, IDAHO CODE, TO PROVIDE FOR A BOARD OF ENVIRONMENTAL QUALITY, TO 21 PROVIDE MEMBERSHIP, TO PROVIDE POWERS AND DUTIES, TO PROVIDE FOR RULES AND 22 TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-107a, IDAHO CODE, TO 23 REDESIGNATE THE SECTION AND TO PROVIDE REFERENCE TO THE DEPARTMENT OF 24 ENVIRONMENTAL QUALITY; AMENDING CHAPTER 1, TITLE 39, IDAHO CODE, BY THE 25 ADDITION OF A NEW SECTION 39-107B, IDAHO CODE, TO CREATE THE DEPARTMENT OF 26 ENVIRONMENTAL QUALITY FUND; AMENDING CHAPTER 1, TITLE 39, IDAHO CODE, BY 27 THE ADDITION OF A NEW SECTION 39-107C, IDAHO CODE, TO CREATE THE ENVIRON- 28 MENTAL PROTECTION TRUST FUND; AMENDING SECTION 39-3628, IDAHO CODE, TO 29 PROVIDE CORRECT TERMINOLOGY FOR THE WATER POLLUTION CONTROL FUND AND TO 30 PROVIDE FOR REMITTANCE OF SALES TAX MONEYS; AMENDING SECTION 39-3630, 31 IDAHO CODE, TO PROVIDE CORRECT TERMINOLOGY, TO REVISE PURPOSES THAT MONEY 32 IN THE WATER POLLUTION CONTROL FUND MAY BE USED FOR AND TO PROVIDE THAT 33 INTEREST EARNED ON MONEYS INVESTED FROM THE FUND SHALL BE RETURNED TO THE 34 FUND; AMENDING SECTION 39-108, IDAHO CODE, TO PROVIDE INVESTIGATIVE POWERS 35 TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL CORREC- 36 TIONS; AMENDING SECTION 39-109, IDAHO CODE, TO PROVIDE FOR CIVIL ENFORCE- 37 MENT ACTIONS TO BE COMMENCED AT THE REQUEST OF THE DIRECTOR OF THE DEPART- 38 MENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 39-110, IDAHO CODE, TO 39 PROVIDE FOR REGISTRATION OF PERSONS AT THE REQUEST OF THE DIRECTOR OF THE 40 DEPARTMENT OF ENVIRONMENTAL QUALITY; AMENDING SECTION 39-111, IDAHO CODE, 41 TO PROVIDE FOR AVAILABILITY OF RECORDS FURNISHED TO THE BOARD OF ENVIRON- 42 MENTAL QUALITY; AMENDING SECTION 39-112, IDAHO CODE, TO PROVIDE FOR AN 43 EMERGENCY ORDER TO BE ISSUED BY THE DIRECTOR OF THE DEPARTMENT OF ENVIRON- 44 MENTAL QUALITY, TO PROVIDE INTERPRETATION AND TO MAKE TECHNICAL CORREC- 45 TIONS; AMENDING SECTION 39-113, IDAHO CODE, TO PROVIDE FOR TRANSFER OF 46 EMPLOYEES AND TO MAKE A TECHNICAL CORRECTION; REPEALING SECTION 39-114, 2 1 IDAHO CODE; AMENDING SECTION 39-115, IDAHO CODE, TO PROVIDE FOR POLLUTION 2 SOURCE PERMITS TO BE ISSUED BY THE DIRECTOR OF THE DEPARTMENT OF ENVIRON- 3 MENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 39-116, 4 IDAHO CODE, TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT OF ENVIRONMEN- 5 TAL QUALITY SHALL HAVE THE AUTHORITY TO ISSUE COMPLIANCE SCHEDULES AND TO 6 REVISE WHAT IS CONTAINED IN THEM; AMENDING SECTION 39-118, IDAHO CODE, TO 7 PROVIDE FOR REVIEW OF PLANS BY THE DIRECTOR OF THE DEPARTMENT OF ENVIRON- 8 MENTAL QUALITY AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 9 39-118D, IDAHO CODE, TO PROVIDE FOR THE IDAHO AIR QUALITY PERMITTING FUND 10 WITHIN THE STATE TREASURY TO BE UTILIZED BY THE DEPARTMENT OF ENVIRONMEN- 11 TAL QUALITY; AMENDING SECTION 39-119, IDAHO CODE, TO PROVIDE FOR FEES 12 AUTHORIZED BY THE DIRECTOR AND BOARD OF ENVIRONMENTAL QUALITY; AMENDING 13 SECTION 39-120, IDAHO CODE, TO PROVIDE THAT THE DEPARTMENT OF ENVIRONMEN- 14 TAL QUALITY BE THE PRIMARY ADMINISTRATIVE AGENCY TO ADMINISTER GROUND 15 WATER QUALITY PROTECTION PROGRAMS; AMENDING SECTION 39-121, IDAHO CODE, TO 16 FURTHER DEFINE TERMS; REPEALING SECTIONS 39-122, 39-123, 39-124 AND 17 39-125, IDAHO CODE; AMENDING SECTION 39-126, IDAHO CODE, TO PROVIDE REFER- 18 ENCE TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND TO MAKE TECHNICAL COR- 19 RECTIONS; AMENDING SECTION 39-129, IDAHO CODE, TO DELETE REFERENCE TO CER- 20 TAIN STUDIES AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-414, 21 IDAHO CODE, TO PROVIDE FOR DELEGATION BY THE DIRECTOR OF THE DEPARTMENT OF 22 ENVIRONMENTAL QUALITY; AMENDING SECTION 39-417, IDAHO CODE, TO PROVIDE FOR 23 RULES OF THE BOARD OF ENVIRONMENTAL QUALITY AND TO PROVIDE A CORRECT CITA- 24 TION; AMENDING SECTION 39-419, IDAHO CODE, TO PROVIDE A CORRECT CITATION 25 AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 42-202B, IDAHO CODE, 26 TO PROVIDE A CORRECT CITATION AND TO MAKE TECHNICAL CORRECTIONS; AMENDING 27 SECTION 57-1701, IDAHO CODE, TO PROVIDE A CORRECT REFERENCE; AMENDING 28 TITLE 56, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 10, TITLE 56, IDAHO 29 CODE, TO DEFINE TERMS, TO CREATE THE DEPARTMENT OF HEALTH AND WELFARE, TO 30 PROVIDE POWERS AND DUTIES OF THE DIRECTOR, TO PROVIDE FOR THE CREATION OF 31 THE BOARD OF HEALTH AND WELFARE, TO PROVIDE ADDITIONAL POWERS AND DUTIES 32 OF THE DIRECTOR, TO PROVIDE FOR CONSTRUCTION OF TERMS, TO PROVIDE FOR COL- 33 LECTION OF FEES AND TO PROVIDE FOR CRIMINAL VIOLATIONS; PROVIDING AN 34 EFFECTIVE DATE, PROVIDING APPLICATION, PROVIDING TRANSITION AND PROVIDING 35 THE EFFECT OF RULES. 36 Be It Enacted by the Legislature of the State of Idaho: 37 SECTION 1. That Section 67-2402, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 67-2402. STRUCTURE OF THE EXECUTIVE BRANCH OF IDAHO STATE GOVERNMENT. (1) 40 Pursuant to section 20, article IV, Idaho constitution, all executive and 41 administrative offices, agencies, and instrumentalities of the executive 42 department of state, except for those assigned to the elected constitutional 43 officers, are allocated among and within the following departments: 44 Department of administration 45 Department of agriculture 46 Department of commerce 47 Department of correction 48 Department of labor 49 Department of environmental quality 50 Department of finance 51 Department of fish and game 52 Department of health and welfare 3 1 Department of insurance 2 Department of juvenile corrections 3 Idaho transportation department 4 Industrial commission 5 Department of lands 6 Department of law enforcement 7 Department of parks and recreation 8 Department of revenue and taxation 9 Department of self-governing agencies 10 Department of water resources 11 State board of education 12 The public school districts of Idaho, having condemnation authority, shall 13 be considered civil departments of state government for the purpose of and 14 limited to the purchase of state endowment land at appraised prices. 15 (2) The governor, lieutenant governor, secretary of state, state control- 16 ler, state treasurer, attorney general and superintendent of public instruc- 17 tion each heads a constitutional office. 18 (3) For its internal structure, unless specifically provided otherwise, 19 each department shall adhere to the following standard terms: 20 (a) The principal unit of a department is a division. Each division shall 21 be headed by an administrator. The administrator of any division shall be 22 exempt from the provisions of chapter 53, title 67, Idaho Code. 23 (b) The principal unit of a division is a bureau. Each bureau shall be 24 headed by a chief. 25 (c) The principal unit of a bureau is a section. Each section shall be 26 headed by a supervisor. 27 SECTION 2. That Section 67-2406, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 67-2406. DIRECTORS OF DEPARTMENTS ENUMERATED. The following department 30 directors are created: 31 Director, department of administration 32 Director, department of agriculture 33 Director, department of commerce 34 Director, department of correction 35 Director, department of labor 36 Director, department of finance 37 Director, department of fish and game 38 Director, department of environmental quality 39 Director, department of health and welfare 40 Director, department of insurance 41 Director, department of juvenile corrections 42 Director, Idaho transportation department 43 Director, department of lands 44 Director, department of law enforcement 45 Director, department of parks and recreation 46 Director, department of water resources. 47 48 SECTION 3. That Section 59-904, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 59-904. STATE OFFICES -- VACANCIES, HOW FILLED AND CONFIRMED. (a) All 51 vacancies in any state office, and in the supreme and district courts, unless 52 otherwise provided for by law, shall be filled by appointment by the governor. 4 1 Appointments to fill vacancies pursuant to this section shall be made as pro- 2 vided in subsections (b), (c), (d), (e), and (f) of this section, subject to 3 the limitations prescribed in those subsections. 4 (b) Nominations and appointments to fill vacancies occurring in the 5 office of lieutenant governor, state controller, state treasurer, superintend- 6 ent of public instruction, attorney general and secretary of state shall be 7 made by the governor, subject to the advice and consent of the senate, for the 8 balance of the term of office to which the predecessor of the person appointed 9 was elected. 10 (c) Nominations and appointments to and vacancies in the following listed 11 offices shall be made or filled by the governor subject to the advice and con- 12 sent of the senate for the terms prescribed by law, or in case such terms are 13 not prescribed by law, then to serve at the pleasure of the governor: 14 Director of the department of administration, 15 Director of the department of finance, 16 Director of the department of insurance, 17 Director, department of agriculture, 18 Director of the department of labor, 19 Director of the department of water resources, 20 Director of the department of law enforcement, 21 Director of the department of commerce, 22 Director of the department of environmental quality, 23 Director of the department of juvenile corrections, 24 Executive director of the commission of pardons and parole, 25 The state historic preservation officer, 26 The administrator of the division of human resources, 27 Member of the state tax commission, 28 Members of the board of regents of the university of Idaho and the state 29 board of education, 30 Members of the Idaho water resources board, 31 Members of the state fish and game commission, 32 Members of the Idaho transportation board, 33 Members of the state board of health and welfare, 34 Members of the board of environmental quality, 35 Members of the board of directors of state parks and recreation, 36 Members of the board of correction, 37 Members of the industrial commission, 38 Members of the Idaho public utilities commission, 39 Members of the Idaho personnel commission, 40 Members of the board of directors of the Idaho state retirement system, 41 Members of the board of directors of the state insurance fund, 42 Members of the commission of pardons and parole. 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 chapter shall not apply to appointments which have 15 been made prior to the effective date of this chapter. It is the further 16 intent of the legislature that the provisions of this section shall apply to 17 the offices listed in this section and to any office created by law or execu- 18 tive order which succeeds to the powers, duties, responsibilities and authori- 19 ties of any 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 known and des- 22 ignated 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 human health and the environment as its sole mission is in 27 the public's interest; 28 (2) That all existing, but no new rights, powers, duties, budgets, funds, 29 contracts, rulemaking proceedings, administrative proceedings, contested 30 cases, civil actions, and other matters relating to environmental protection 31 as described in this chapter, vested in the director of the department of 32 health and welfare and the board of health and welfare on January 1, 2000, 33 shall be transferred to the board of environmental quality, the department of 34 environmental quality and its director as described herein effective July 1, 35 2000; 36 (3) That protecting environmental values including, but not limited to, 37 clean air, water and soil, reducing or eliminating environmental pollution 38 arising from human activities, ensuring the proper treatment, storage and dis- 39 posal of hazardous wastes and ensuring the proper cleanup and restoration of 40 existing natural resources are vital interests of the state of Idaho; 41 (4) That it is in the interest of the state and its citizens to establish 42 a department of environmental quality to carry out programs to protect human 43 health and the environment, to enforce environmental laws and develop pollu- 44 tion prevention, compliance assistance and other environmental incentive pro- 45 grams; 46 (5) That the goals to protect human health and the environment can be 47 best achieved by vesting responsibility for environmental protection as speci- 48 fied herein in a state department which has as its sole mission, protection 49 for human health and the environment for the state of Idaho and its residents; 50 (6) The legislature further intends that environmental quality programs 51 be promulgated and managed such that the benefits of pollution control mea- 52 sures have a reasonable relationship to the public health costs, private prop- 53 erty rights, environmental, economic and energy impacts of such measures, pro- 6 1 vided that this section does not require the preparation of any economic, 2 environmental or other statement; 3 (7) That the department of environmental quality shall utilize the desig- 4 nated program appropriations made to the department of health and welfare for 5 environmental program functions, the division of environmental quality and the 6 INEEL oversight program for fiscal year 2001. 7 SECTION 5. That Section 39-103, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 39-103. DEFINITIONS. Whenever used or referred to in this act, unless a 10 different meaning clearly appears from the context, the following terms shall 11 have the following meanings: 12 (1) "Air contaminant" or "air contamination" means the presence in the 13 outdoor atmosphere of any dust, fume, mist, smoke, radionuclide, vapor, gas or 14 other gaseous fluid or particulate substance differing in composition from or 15 exceeding in concentration the natural components of the atmosphere. 16 (2) "Air pollution" means the presence in the outdoor atmosphere of any 17 contaminant or combination thereof in such quantity of such nature and dura- 18 tion and under such conditions as would be injurious to human health or wel- 19 fare, to animal or plant life, or to property, or to interfere unreasonably 20 with the enjoyment of life or property. 211.(3) "Board" means the board ofhealth and welfareenvironmental 22 quality. 232.(4) "Department" means the department ofhealth and welfareenvironmen- 24 tal quality. 253.(5) "Director" means the director of the department ofhealth and wel-26fareenvironmental quality or the director's designee. 274. "State" means the state of Idaho.285. "Air contaminant" or "air contamination" means the presence in the29outdoor atmosphere of any dust, fume, mist, smoke, vapor, gas or other gaseous30fluid or particulate substance differing in composition from or exceeding in31concentration the natural components of the atmosphere.326. "Air pollution" means the presence in the outdoor atmosphere of any33contaminant or combination thereof in such quantity of such nature and dura-34tion and under such conditions as would be injurious to human health or wel-35fare, to animal or plant life, or to property, or to interfere unreasonably36with the enjoyment of life or property.377.(6) "Emission" means any controlled or uncontrolled release or dis- 38 charge into the outdoor atmosphere of any air contaminant or combination 39 thereof. Emission also includes any release or discharge of any air contami- 40 nant from a stack, vent or other means into the outdoor atmosphere that origi- 41 nates from an emission unit. 428. "Water pollution" is such alteration of the physical, thermal, chemi-43cal, biological or radioactive properties of any waters of the state, or such44discharge of any contaminant into the waters of the state as will or is likely45to create a nuisance or render such waters harmful or detrimental or injurious46to public health, safety or welfare or to domestic, commercial, industrial,47recreational, esthetic or other legitimate uses or to livestock, wild animals,48birds, fish or other aquatic life.499. "Waters" mean all the accumulations of water, surface and underground,50natural and artificial, public and private, or parts thereof which are wholly51or partially within, flow through or border upon this state.5210. "Solid waste" means garbage, refuse, and other discarded solid mate-53rials, including solid waste materials resulting from industrial, commercial,7 1and agricultural operations, and from community activities, but does not2include solid or dissolved materials in domestic sewage or other significant3pollutants in water resources, such as silt, dissolved or suspended solids in4industrial waste water effluents, dissolved materials in irrigation return5flows or other common water pollutants.611. "Solid waste disposal" means the collection, storage, treatment, uti-7lization, processing or final disposal of solid waste.812. "Laboratory" means not only facilities for biological, serological,9biophysical, cytological and pathological tests, but also facilities for the10chemical or other examination of materials from water, air or other sub-11stances.1213. "Person" means any individual, association, partnership, firm, joint13stock company, trust, estate, political subdivision, public or private corpo-14ration, state or federal governmental department, agency or instrumentality,15or any other legal entity which is recognized by law as the subject of rights16and duties.1714. "Public swimming pool" means an artificial structure, and its appur-18tenances, which contains water more than two (2) feet deep which is used or19intended to be used for swimming or recreational bathing, and which is for the20use of any segment of the public pursuant to a general invitation but not an21invitation to a specific occasion or occasions.2215. "Public water supply" means all mains, pipes and structures through23which water is obtained and distributed to the public, including wells and24well structures, intakes and cribs, pumping stations, treatment plants, reser-25voirs, storage tanks and appurtenances, collectively or severally, actually26used or intended for use for the purpose of furnishing water for drinking or27general domestic use in incorporated municipalities; or unincorporated commu-28nities where ten (10) or more separate premises or households are being served29or intended to be served; or any other supply which serves water to the public30and which the department of health and welfare declares to have potential31health significance.32 (7) "Laboratory" means not only facilities for biological, serological, 33 biophysical, cytological and pathological tests, but also facilities for the 34 chemical or other examination of materials from water or other substances. 35 (8) "Medical waste combustor" means any device, incinerator, furnace, 36 boiler or burner, and any and all appurtenances thereto, which burns or 37 pyrolyzes medical waste consisting of human or animal tissues, medical cul- 38 tures, human blood or blood products, materials contaminated with human blood 39 or tissues, used or unused surgical wastes, used or unused sharps, including 40 hypodermic needles, suture needles, syringes and scalpel blades. 41 (9) "Person" means any individual, association, partnership, firm, joint 42 stock company, trust, estate, political subdivision, public or private corpo- 43 ration, state or federal governmental department, agency or instrumentality, 44 or any other legal entity which is recognized by law as the subject of rights 45 and duties. 46 (10) "Public water supply" means all mains, pipes and structures through 47 which water is obtained and distributed to the public, including wells and 48 well structures, intakes and cribs, pumping stations, treatment plants, reser- 49 voirs, storage tanks and appurtenances, collectively or severally, actually 50 used or intended for use for the purpose of furnishing water for drinking or 51 general domestic use in incorporated municipalities; or unincorporated commu- 52 nities where ten (10) or more separate premises or households are being served 53 or intended to be served; or any other supply which serves water to the public 54 and which the department declares to have potential health significance. 55 (11) "Solid waste" means garbage, refuse, radionuclides and other dis- 8 1 carded solid materials, including solid waste materials resulting from indus- 2 trial, commercial and agricultural operations and from community activities 3 but does not include solid or dissolved materials in domestic sewage or other 4 significant pollutants in water resources, such as silt, dissolved or sus- 5 pended solids in industrial waste water effluents, dissolved materials in 6 irrigation return flows or other common water pollutants. 7 (12) "Solid waste disposal" means the collection, storage, treatment, uti- 8 lization, processing or final disposal of solid waste. 9 (13) "State" means the state of Idaho. 1016.(14) "Substantive" means that which creates, defines or regulates the 11 rights of any person or implements, interprets or prescribes law or policy, 12 but does not include statements concerning only the internal management of the 13 department and not affecting private rights or procedures available to the 14 public. 1517. "Nutrient" means any one (1) of the natural elements including, but16not limited to, carbon, hydrogen, oxygen, nitrogen, potassium, phosphorus,17magnesium, sulfur, calcium, sodium, iron, manganese, copper, zinc, molybdenum,18vanadium, boron, chlorine, cobalt and silicon, that are essential to plant and19animal growth.2018. "Medical waste combustor" means any device, incinerator, furnace,21boiler or burner, and any and all appurtenances thereto, which burns or22pyrolyzes medical waste consisting of human or animal tissues, medical cul-23tures, human blood or blood products, materials contaminated with human blood24or tissues, used or unused surgical wastes, used or unused sharps including25hypodermic needles, suture needles, syringes and scalpel blades.26 (15) "Water pollution" is such alteration of the physical, thermal, chemi- 27 cal, biological or radioactive properties of any waters of the state, or such 28 discharge of any contaminant into the waters of the state as will or is likely 29 to create a nuisance or render such waters harmful or detrimental or injuri- 30 ous to public health, safety or welfare or to domestic, commercial, indus- 31 trial, recreational, esthetic or other legitimate uses or to livestock, wild 32 animals, birds, fish or other aquatic life. 33 (16) "Waters" means all accumulations of water, surface and underground, 34 natural and artificial, public and private or parts thereof which are wholly 35 or partially within, flow through or border upon this state except for private 36 waters as defined in section 42-212, Idaho Code. 37 SECTION 6. That Section 39-104, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 39-104. DEPARTMENT OFHEALTH AND WELFAREENVIRONMENTAL QUALITY -- CRE- 40 ATION.-- ENVIRONMENTAL PROTECTION DIVISION -- ADMINISTRATIVE REGIONS.(1) 41 There is created and established in the state government a department of 42health and welfareenvironmental quality which shall for the purposes of sec- 43 tion 20, article IV, of the constitution of the state of Idaho be an executive 44 department of the state government. The executive and administrative power of 45 this department shall be vested in the director of the department who shall be 46 appointed and serve at the pleasure of the governor, with the advice and con- 47 sent of the senate. 48 (2) The department shall be organizedinto an environmental protection49division and intoin suchotheradministrativeand general servicesdivisions 50 or regions as may be necessary in order to efficiently administer the depart- 51 ment. Each division shall be headed by andivisionadministrator who shall be 52 appointed by and serve at the pleasure of the director.with the concurrence53of the board.9 1 (3) The INEEL coordinator-manager, rRegional administrators andassistant2 division administratorsin the environmental protection divisionshall be non- 3 classified employees exempt from the provisions of chapter 53, title 67, Idaho 4 Code. 5 (4)In order to provide more effective and economical access to the state6environmental, health, and social services by the people of Idaho, the gover-7nor is hereby authorized to establish substate administrative regions. In the8designation of these regions specific consideration shall be given to the geo-9graphic and economic convenience of the citizens included therein. Each10substate administrative region shall be headed by a regional deputy who shall11be appointed by and serve at the pleasure of the director with the concurrence12of the boardNo provision of this title shall be interpreted as to supersede, 13 abrogate, injure or create rights to divert or store water and apply water to 14 beneficial uses established under section 3, article XV of the constitution of 15 the state of Idaho and title 42, Idaho Code. Nothing in this title shall be 16 construed to allow the department to establish a water right for minimum 17 stream flows or a water right for minimum water levels in any lakes, reser- 18 voirs or impoundments. Minimum stream flows and minimum water levels may only 19 be established pursuant to chapter 15, title 42, Idaho Code. 20 (5) Nothing in this title shall be construed to allow the department to 21 establish or require minimum stream flows which would prevent any water from 22 being diverted for irrigation purposes pursuant to existing water rights, or 23 to establish or require minimum water levels in any lakes, reservoirs or 24 impoundments in which any water is stored for irrigation purposes which would 25 adversely affect existing water rights or contracts with the federal govern- 26 ment. 27 SECTION 7. That Section 39-104A, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 39-104A. AUTHORITY TO MAKE RULES REGULATING LARGE SWINE AND POULTRY FEED- 30 ING OPERATIONS. (1) The state of Idaho is experiencing the development of 31 large swine and poultry feeding operations which are inadequately controlled 32 through existing state regulatory mechanisms. If not properly regulated, these 33 facilities pose a threat to the state's surface and ground water resources. 34 Due to existing rulemaking authority, the departmentof health and welfare,35divisionof environmental quality, is in the best position of all state agen- 36 cies to modify its present rules and to make new rules to develop an adequate 37 regulatory framework for large swine and poultry feeding operations. 38 (2) The department ofhealth and welfareenvironmental quality is autho- 39 rized to modify its existing administrative rules and to make new rules regu- 40 lating large swine and poultry feeding operations, as they shall be defined by 41 the department. The department is authorized to work with the Idaho department 42 of agriculture in the development of such rules. 43 SECTION 8. That Section 39-105, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 39-105. POWERS AND DUTIES OF THE DIRECTOR. The director shall have the 46 following powers and duties: 47 (1.) All of the rights, powers and dutiesof the department of public48health, the department of health, the board of health, and the air pollution49control commission, are hereby transferred to the director of the department50of health and welfare, provided, however, that rulemaking and hearing func-51tions relating to environmental protection, public health and licensure and10 1certification standards shall be vested in the board of health and welfare2 regarding environmental protection functions vested in the department of 3 health and welfare, and its director, administered by the division of environ- 4 mental quality, including, but not limited to, those provided by chapters 1, 5 4, 30, 36, 44, 58, 62, 64, 65, 66, 70, 71, 72 and 74, title 39, Idaho Code. 6 The director shall have all such powers and duties as described in this sec- 7 tion as may have been or could have been exercised by his predecessors in law, 8including the authority to adopt, promulgate, and enforce rules and regula-9tions in those circumstances when the authority to adopt, promulgate, and10enforce such rules and regulations is not vested in the board of health and11welfare,and shall be the successor in law to all contractual obligations 12 entered into byhispredecessors in law. Allrulemaking proceedings andhear- 13 ings of the director shall be governed by the provisions of chapter 52, title 14 67, Idaho Code. 15 (2.) The director shall, pursuant and subject to the provisions of the 16 Idaho Code, and the provisions of this act, formulate and recommend to the 17 board, rules, regulations, codes and standards,as may be necessary to deal 18 with problems related topersonal health,water pollution, air pollution, 19visual pollution, noise abatement,solid waste disposal, and licensure and 20 certification requirements pertinent thereto, which shall, upon adoption by 21 the board, have the force of the law relating to any purpose which may be nec- 22 essary and feasible for enforcing the provisions of this act, including, but 23 not limited to, the prevention, control or abatement of environmental pollu- 24 tion or degradation including radionuclides andthe maintenance and protection25of personalrisks to public health related to any of the powers and duties 26 described in this section. Any suchregulation or standardrule may be of gen- 27 eral application throughout the state or may be limited as to times, places, 28 circumstances or conditions in order to make due allowance for variations 29 therein. 30 (3.) The director, under the rules, regulations, codes or standards31 adopted by the board, shall have the general supervision of the promotion and 32 protection of thelife, health, mental health andenvironmentof the peopleof 33 this state. The powers and duties of the director shall include, but not be 34 limited to, the following: 35 (a.) The issuance of licenses and permits as prescribed by law and by the 36 rulesand regulationsof the board promulgated hereunder. For each air 37 quality operating permit issued under title V of the federal clean air act 38 and its implementing regulations, the director shall, consistent with the 39 federal clean air act and its implementing regulations, expressly include 40 a provision stating that compliance with the conditions of the permit 41 shall be deemed compliance with the applicable requirements of the federal 42 clean air act and the title V implementing regulations. The director may 43 develop and issue general permits covering numerous similar sources, as 44 authorized by 40 CFR 70.6(d) as may be amended, and as appropriate. 45b. The supervision and administration of laboratories and the supervision46and administration of standards of tests for environmental pollution,47chemical analyses and communicable diseases. The director may require that48laboratories operated by any city, county, institution, person, firm or49corporation for health or environmental purposes conform to standards set50by the board.51c. The supervision and administration of a mental health program, which52shall include services for the evaluation, screening, custody and treat-53ment of the mentally ill and those persons suffering from a mental defect,54or mental defects.55d. The enforcement of minimum standards of health, safety and sanitation11 1for all public swimming pools within the state.2e.(b) The enforcement ofstandards,rulesand regulations,relating to 3 public water supplies and to administer the drinking water loanaccount4 fund pursuant to chapter 76, title 39, Idaho Code, including making loans 5 to eligible public drinking water systems as defined in the federal safe 6 drinking water act as amended, and to comply with all requirements of the 7 act, 42 U.S.C. 300f, et seq. and regulations promulgated pursuant to the 8 act. This includes, but is not limited to, the adoption and implementation 9 of an operator certification program; the development of and implementa- 10 tion of a capacity development strategy to ensure public drinking water 11 systems have the technical, managerial and financial capability to comply 12 with the national primary drinking water regulations; and the enhancement 13 of protection of source waters for public drinking water systems. 14f. The supervision and administration of the various schools, hospitals15and institutions that were the responsibility of the board of health at16the time this act went into effect.17g. The supervision and administration of services dealing with the prob-18lems of alcoholism including, but not limited to, the care and rehabilita-19tion of persons suffering from alcoholism.20h.(c) The establishment of liaison with other governmental departments, 21 agencies and boards in order to effectively assist other governmental 22 entities with the planning for the control of or abatement of environmen- 23 taland health problemspollution. All of the rules, regulations and stan-24dardsadopted by the board hereunder shall apply to state institutions. 25i. The supervision and administration of an emergency medical service26program including, but not limited to, assisting other governmental agen-27cies and local governmental units, in providing first aid emergency medi-28cal services and for transportation of the sick and injured.29j.(d) The supervision and administration of a system to safeguard air 30 quality and for limiting and controlling the emission of air contaminants. 31k.(e) The supervision and administration of a system to safeguard the 32 quality of the waters of this state including, but not limited to, the 33 enforcement ofstandardsrules relating to the discharge of effluent into 34 the waters of this state and the storage, handling and transportation of 35 solids, liquids, and gases which may cause or contribute to water pollu- 36 tion. For purposes of complying with the clean water act, the director may 37 provide an exemption from additional reductions for those nonpoint sources 38 that meet the applicable reductions set forth in an approved TMDL as 39 defined in chapter 36, title 39, Idaho Code. 40l.(f) The supervision and administration of administrative units whose 41 responsibility shall be to assist and encourage counties, cities, other 42 governmental units, and industries in the control of and/or abatement of 43 environmentaland health problemspollution. 44m.(g) The administration of solid waste disposal site and design review 45 in accordance with the provisions of chapter 74, title 39, Idaho Code, and 46 chapter 4, title 39, Idaho Code, and in particular as follows: 47 (i.) The issuance of a solid waste disposal site certificate in the 48 manner provided in chapter 74, title 39, Idaho Code. 49 (ii.) Provide review and approval regarding the design of solid 50 waste disposal facilities and ground water monitoring systems and 51 approval of all applications for flexible standards as provided in 40 52 CFR 258, in accordance with the provisions of chapter 74, title 39, 53 Idaho Code. 54 (iii.) Cooperating and coordinating with operational monitoring of 55 solid waste disposal sites by district health departments pursuant to 12 1 authority established in chapters 4 and 74, title 39, Idaho Code. 2 (iv.) The authority granted to the director pursuant to provisions 3 of this subsection shall be effective upon enactment of chapter 74, 4 title 39, Idaho Code, by the legislature. 5 (v.) The authority to develop and proposeregulationsrules as nec- 6 essary to supplement details of compliance with the solid waste 7 facilities act and applicable federal regulations, provided that such 8 regulations shall not conflict with the provisions of this act nor 9 shall such regulations be more strict than the requirements estab- 10 lished in federal law or in the solid waste facilities act. 11n.(h) The enforcement of all laws, rules, regulations, codes and stan- 12 dards relating to environmental protection and health. 13o. The formulation and adoption of a comprehensive state nutrient manage-14ment plan for the surface waters of the state of Idaho in consultation15with the appropriate state or federal agencies, local units of government,16and with the public involvement as provided for under the administrative17procedure act. The director shall recommend by March 1, 1990, to the18board for adoption, rules and regulations setting forth procedures for19development of the plan, including mechanisms to keep the public informed20and encourage public participation in plan development.21The plan shall be developed on a hydrologic basin unit basis with a22lake system emphasis. The panhandle hydrologic basin plan shall be com-23pleted no later than July 1, 1995. The remaining basin plans shall be com-24pleted no later than January 1, 1995. Each plan shall identify nutrient25sources; the dynamics of nutrient removal, use, and dispersal; and26preventative or remedial actions where feasible and necessary to protect27the surface waters of the state. The director shall formulate and recom-28mend to the board for adoption rules and regulations as necessary to29implement the plan. The plan shall be used by the department and other30appropriate agencies including soil conservation districts, public health31districts and local units of government in developing programs for32nutrient management. State and local units of government shall exercise33their police powers in compliance with the comprehensive state nutrient34management plan of this act. Local nutrient management programs adopted by35any local unit of government prior to the completion of the state compre-36hensive nutrient management plan or a hydrologic basin plan shall be con-37sistent with the criteria for inclusion in the comprehensive state nutri-38ent management plan as enumerated in this subsection, as evidenced by39findings of fact by the local units of government and confirmed by the40division of environmental quality and the local health district board. The41director shall recommend by March 1, 1990, to the board for adoption,42rules and regulations for procedures to determine consistency.43p. The formulation of a water quality management plan for Priest lake in44conjunction with a planning team from the Priest lake area whose member-45ship shall be appointed by the board and consist of a fair representation46of the various land managers, and user and interest groups of the lake and47its Idaho watershed. The stated goal of the plan shall be to maintain the48existing water quality of Priest lake while continuing existing nonpoint49source activities in the watershed and providing for project specific best50management practices when necessary. The plan shall include comprehensive51characterization of lake water quality through completion of a baseline52monitoring program to be conducted by the department and shall consider53existing economics and nonpoint source activity dependent industries of54the Priest lake area. The planning team shall conduct public hearings and55encourage public participation in the plan development including opportu-13 1nity for public review and input. Technical assistance to the planning2team with state nonpoint source management programs in forest practices,3road construction and maintenance, agriculture and mining shall be pro-4vided by the department. Technical assistance to the planning team on area5planning, zoning and sanitary regulations shall be provided by the clean6lakes council. The plan shall be submitted to the board for its approval7at the end of a three (3) year plan development period. Upon review and8acceptance by the board, the plan shall be submitted to the legislature9for amendment, adoption or rejection. If adopted by the legislature, the10plan shall be enacted by passage of a statute at the regular legislative11session when it receives the plan and shall have the force and effect of12law. Existing forest practices, agricultural and mining nonpoint source13management programs are considered to be adequate to protect water quality14during the plan development period.15q.(i) The adoption and implementation of a public wastewater operator 16 certification program to ensure the operators of public wastewater treat- 17 ment facilities have the technical expertise and certification to comply 18 with federal regulations and state rules dealing with wastewater; and the 19 enhancement and protection of source waters of the state pursuant to rules 20 of the board. 21 (4.) The director, when so designated by the governor, shall have the 22 power to apply for, receive on behalf of the state, and utilize any federal 23 aid, grants, gifts, gratuities, or moneys made available through the federal 24 government including, but not limited to, the federal water pollution control 25 act, for use in or by the state of Idaho in relation to health and environmen- 26 tal protection. 27 (5.) The director shall have the power to enter into and make contracts 28 and agreements with any public agencies or municipal corporation for facili- 29 ties, land, and equipment when such use will have a beneficial,or recre- 30 ational, or therapeuticeffect or be in the best interest in carrying out the 31 duties imposed upon the department. 32 The director shall also have the power to enter into contracts for the 33 expenditure of state matching funds for local purposes. This subsection will 34 constitute the authority for public agencies or municipal corporations to 35 enter into such contracts and expend money for the purposes delineated in such 36 contracts. 37 (6.) The director is authorized to adopt an official seal to be used on 38 appropriate occasions, in connection with the functions of the department or 39 the board, and such seal shall be judicially noticed. Copies of any books, 40 records, papers and other documents in the department shall be admitted in 41 evidence equally with the originals thereof when authenticated under such 42 seal. 43 SECTION 9. That Section 39-106, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 39-106. DIRECTOR -- ADDITIONAL POWERS AND DUTIES -- TRANSFER AND CONTINU- 46 ATION OF RULES AND OTHER PROCEEDINGS. (1.) The director shall exercise the 47 following powers and duties in addition to all other powers and duties inher- 48 ent in the position: 49 (a.) Prescribe suchrules and regulationspolicies and procedures as may 50 be necessary for the administration of the department, the conduct and 51 duties of the employees, the orderly and efficient management of depart- 52 ment business, and the custody, use and preservation of department 53 records, papers, books and property belonging to the state. 14 1 (b.) Employ such personnel as may be deemed necessary, prescribe their 2 duties and fix their compensation within the limits provided by the state 3 personnel system law. 4 (c.) Administer oaths for all purposes required in the discharge of his 5 duties. 6 (d.) Prescribe the qualifications of all personnel of the department on a 7 nonpartisan merit basis, in accordance with the Idaho personnel system 8 law, provided, however, that the administrators in charge of any division 9 of the department, and the administrators in charge of the state veterans10homes, state hospital north, state hospital south, and Idaho state school11and hospitalshall serve at the pleasure of the director. 12 (e.) Create such units, sections and subdivisions as are or may be neces- 13 sary for the proper and efficient functioning of the department. 142. All of the executive and administrative duties, powers and functions15transferred to the administrator of the department of environmental and commu-16nity services by chapter 87, Laws of 1973, are hereby transferred to the17director of the department of health and welfare, who shall be the successor18in law to all contractual obligations entered into by his predecessors in law.193.(2)All rights and title to property transferred to and vested in the20department of environmental and community services by chapter 87, Laws of211973, are hereby transferred to and vested in the department of health and22welfareAll books, records, papers, documents, property, real and personal, 23 unexpended appropriations and pending business in any way pertaining to the 24 rights, powers and duties regarding environmental protection functions vested 25 in the department of health and welfare and its director, administered by the 26 division of environmental quality, are transferred to and vested in the 27 department and its director. The department established by this act is empow- 28 ered to acquire, by purchase or exchange, any property which in the judgment 29 of the department isnotneedful for the operation of the facilities and pro- 30 grams for which it is responsible and to dispose of, by sale or exchange, any 31 property which in the judgment of the department is not needful for the opera- 32 tion of the same. 334.(3) Allcodes,rules,regulations,standards, plans, licenses, permits, 34and certificatesconsent orders, compliance schedules, certification, and 35 other agreements pertaining to environmental protection functions administered 36 by the division of environmental quality heretofore adopted or issued by the 37board of environmental and community services, or the department of environ-38mental and community services, pursuant to chapter 87, Laws of 1973,depart- 39 ment of health and welfare and its director are transferred to the department 40 of environmental quality and shall remain in full force and effect until 41 superseded.by rules, regulations, standards, plans, licenses, permits and42certificates duly adopted or issued under the provisions of this actThe terms 43 "department" and "director" in such documents shall mean the department of 44 environmental quality and its director, until such documents are amended. 45 (4) The department of environmental quality and its director shall be the 46 successor to all rights, powers and duties of the department of health and 47 welfare and its director regarding all rulemaking proceedings, administrative 48 proceedings, contested cases, civil actions, contracts, delegations, authori- 49 zations and other matters pertaining to environmental protection functions. 50 SECTION 10. That Section 39-107, Idaho Code, be, and the same is hereby 51 amended to read as follows: 52 39-107. BOARD -- COMPOSITION -- OFFICERS -- COMPENSATION -- POWERS -- 53 SUBPOENA -- DEPOSITIONS -- REVIEW -- RULES. 15 1 (1.) (a) The board ofhealth and welfareenvironmental quality shall con- 2 sist of seven (7) members who shall be appointed by the governor, with the 3 advice and consent of the senate. The membersmay be removed byshall 4 serve at the pleasure of the governor.for cause.Each member of the board 5 shall be a citizen of the United States, a resident of the state of Idaho, 6 and a qualified elector, and shall be appointed to assure appropriate geo- 7 graphic representation of the state of Idaho. Not more than four (4) mem- 8 bers of the board shall be from any one (1) political party.AllTwo (2) 9 members of the board shall be chosen with due regard to their knowledge 10 and interest inenvironmental protection and healthsolid waste; two (2) 11 members shall be chosen for their knowledge of and interest in air qual- 12 ity; two (2) members shall be chosen for their knowledge of and interest 13 in water quality; and one (1) member shall be chosen with due regard for 14 his knowledge of and interest in air, water and solid waste issues. 15 (b) The members of the board of environmental quality shall be appointed 16 for a term of four (4) years. In appointing members whose terms begin in 17 2000, the governor shall designate three (3) members to be appointed for a 18 term of three (3) years, two (2) members appointed for a term of four (4) 19 years, and two (2) members appointed for a term of two (2) years. Succes- 20 sors to the members appointed for a term of less than four (4) years shall 21 be appointed for a term of four (4) years thereafter. 22 (2.)The members of the board of environmental and community services,23serving on the effective date of this act shall continue in office as members24of the board of health and welfare, subject to the provisions of this act.25Four (4) members of the board of environmental and community services shall be26designated by the governor to serve terms on the board of health and welfare27expiring on the first Tuesday following the first Monday of January, 1975. The28remaining three (3) members of the board of environmental and community ser-29vices shall serve terms on the board of health and welfare expiring on the30first Tuesday following the first Monday of January, 1977. Thereafter, all31members of the board of health and welfare shall serve four (4) year terms.323.The board annually shall elect a chairman, avice-chairmanvice chair- 33 man, and a secretary, and shall hold such meetings as may be necessary for the 34 orderly conduct of its business, and such meetings shall be held from time to 35 time on seventy-two (72) hours' notice of the chairman or a majority of the 36 members. Five (5) members shall be necessary to constitute a quorum at any 37 regular or special meeting and the action of the majority of members present 38 shall be the action of the board. The members of the board shall be compen- 39 sated as provided in section 59-509(h), Idaho Code. 404.(3) The board, in furtherance of its duties under this act and under 41 its rules, shall have the power to administer oaths, certify to official acts, 42 and to issue subpoenas for the attendance of witnesses and the production of 43 papers, books, accounts, documents and testimony. The board may, if a witness 44 refuses to attend or testify, or to produce any papers required by such sub- 45 poenas, report to the district court in and for the county in which the pro- 46 ceeding is pending, by petition, setting forth that due notice has been given 47 of the time and place of attendance of said witnesses, or the production of 48 said papers, that the witness has been properly summoned, and that the witness 49 has failed and refused to attend or produce the papers required by this sub- 50 poena before the board, or has refused to answer questions propounded to him 51 in the course of said proceedings, and ask an order of said court compelling 52 the witness to attend and testify and produce said papers before the board. 53 The court, upon the petition of the board, shall enter an order directing the 54 witness to appear before the court at a time and place to be fixed by the 55 court in such order, the time to be not more than ten (10) days from the date 16 1 of the order, and then and there shall show cause why he has not attended and 2 testified or produced said papers before the board. A copy of said order shall 3 be served upon said witness. If it shall appear to the court that said sub- 4 poena was regularly issued by the board and regularly served, the court shall 5 thereupon order that said witness appear before the board at the time and 6 place fixed in said order, and testify or produce the required papers. Upon 7 failure to obey said order, said witness shall be dealt with for contempt of 8 court. 95.(4) The director, his designee, or any party to the action may, in an 10 investigation or hearing before the board, cause the deposition or interroga- 11 tory of witnesses or parties residing within or without the state, to be taken 12 in the manner prescribed by law for like depositions and interrogatories in 13 civil actions in the district court of this state, and to that end may compel 14 the attendance of said witnesses and production of books, documents, papers 15 and accounts. 166.(5) Any person aggrieved by an action or inaction of the departmentof17health and welfareshall be afforded an opportunity for a fair hearing upon 18 request therefor in writing pursuant to chapter 52, title 67, Idaho Code, and 19 the rules promulgated thereunder. In those cases where the board has been 20 granted the authority to hold such a hearing pursuant to a provision of the 21 Idaho Code, the hearing may be conducted by the board at a regular or special 22 meeting, or the board may designate hearing officers, who shall have the power 23 and authority to conduct hearings in the name of the board at any time and 24 place. In any hearing, a member of the board or hearing officer designated by 25 it, shall have the power to administer oaths, examine witnesses, and issue in 26 the name of the board subpoenas requiring the testimony of witnesses and the 27 production of evidence relevant to any matter in the hearing. 287.(6) Any person adversely affected by a final determination of the 29 board, may secure judicial review by filing a petition for review as pre- 30 scribed under the provisions of chapter 52, title 67, Idaho Code. The petition 31 for review shall be served upon the chairman of the board, the director of the 32 department, and upon the attorney general of the state of Idaho. Such service 33 shall be jurisdictional and the provisions of this section shall be the exclu- 34 sive procedure for appeal. 358.(7) The board, by the affirmative vote of four (4) of its members, may 36 adopt, amend or repeal the rules, codes, and standards of the department, that 37 are necessary and feasible in order to carry out the purposes and provisions 38 of this act and to enforce the laws of this state. 39 The rules and orders so adopted and established shall have the force and 40 effect of law and may deal with any matters deemed necessary and feasible for 41 protecting the environmentor the healthof the state. 429.(8) Allrule makingrulemaking proceedings and hearings of the board 43 shall be governed by the provisions of chapter 52, title 67, Idaho Code. 4410. All codes, rules and standards heretofore adopted by the department of45public health, the board of health, and the air pollution control commission46and board of environmental and community services, shall remain in full force47and effect until superseded by rules and standards duly adopted by the board48or until the same is rejected, amended or modified by the legislature in49accordance with the provisions of chapter 52, title 67, Idaho Code.5011. All of the powers and duties, rule making and hearing functions trans-51ferred to the board of environmental and community services in chapter 87,52laws of 1973, are hereby transferred to the board of health and welfare.53 (9) The board shall adopt contested case rules that are consistent with 54 the rules adopted by the attorney general under section 67-5206(4), Idaho 55 Code, the provisions of this act and other statutory authority of the depart- 17 1 ment. 2 (10) All rules, permits and other actions heretofore adopted, issued or 3 taken by the board of health and welfare pertaining to the environmental pro- 4 tection functions administered by the division of environmental quality shall 5 remain in full force and effect until superseded. 6 (11) The board of environmental quality shall be the successor to all 7 rights, powers and duties of the board of health and welfare regarding all 8 rulemaking proceedings, administrative proceedings, contested cases, civil 9 actions, contracts, delegations, authority and other matters pertaining to 10 environmental protection functions administered by the division of environmen- 11 tal quality. 12 (12) Upon creation of the board of environmental quality, all pending 13 business before the board of health and welfare relating to environmental pro- 14 tection functions administered by the division of environmental quality shall 15 be transferred to and determined by the board of environmental quality. 16 SECTION 11. That Section 39-107a, Idaho Code, be, and the same is hereby 17 amended to read as follows: 18 39-107aA. REAL PROPERTY IN BUNKER HILL CLEANUP SITE. Notwithstanding any 19 other provision of law to the contrary, the departmentof health and welfare20 may accept transfer from the United States of any real property or interest in 21 real property acquired by the United States for remediation purposes concern- 22 ing the Bunker Hill Superfund Site pursuant to 42 U.S.C. section 9604(j). The 23 state of Idaho shall incur no liability nor be subject to any claims related 24 to the existence, release or threatened release of any hazardous substance or 25 contaminant or pollutant on, or from, any such real property. Any such real 26 property which has a public use or commercial value and which is not useful or 27 usable by the departmentof health and welfareshall be subject to sections 28 58-331 through 58-335, Idaho Code, except that any receipts from the disposal 29 of such property shall be deposited in the Bunker Hill Cleanup Trust Fund 30 established by the Trust Fund Declaration of the state of Idaho dated May 2, 31 1994 (Attachment N, Consent Decree, United States of America v. Asarco, Inc. 32 No. CV-94-0206-N-HLR (D. Idaho)) for the purpose of funding institutional con- 33 trol or operation and maintenance activities regarding the site. 34 SECTION 12. That Chapter 1, Title 39, Idaho Code, be, and the same is 35 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 36 ignated as Section 39-107B, Idaho Code, and to read as follows: 37 39-107B. DEPARTMENT OF ENVIRONMENTAL QUALITY FUND. (1) There is hereby 38 created a fund in the state treasury to be known as the department of environ- 39 mental quality fund and all moneys deposited therein shall be available to be 40 appropriated to the department of environmental quality for purposes for which 41 the department was established. 42 (2) All federal grants, fees for services, permitting fees, other program 43 income and transfers from other funds subject to administration by the direc- 44 tor of the department of environmental quality shall be placed in the fund 45 provided that the statewide accounting and reporting system must provide for 46 identification of the balance of each funding source within the fund. 47 (3) The state controller shall make transfers to the fund from the gen- 48 eral fund and any other funds appropriated to the department of environmental 49 quality as requested by the director of the department and approved by the 50 board of examiners. 18 1 SECTION 13. That Chapter 1, Title 39, Idaho Code, be, and the same is 2 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 3 ignated as Section 39-107C, Idaho Code, and to read as follows: 4 39-107C. ENVIRONMENTAL PROTECTION TRUST FUND ESTABLISHED. The director of 5 the department of environmental quality may receive on behalf of the depart- 6 ment any moneys or real or personal property donated, bequeathed, devised or 7 conditionally granted to the department. Moneys received directly or derived 8 from the sale of such property shall be deposited by the state treasurer in a 9 special fund to be known as the environmental protection trust fund which is 10 hereby established, reserved, set aside, appropriated and made available until 11 expended and used and administered to carry out the terms and conditions of 12 such donation, bequest, devise or grant. Pending such expenditure or use, sur- 13 plus moneys in the environmental protection trust fund shall be invested by 14 the state treasurer in the manner provided for idle state moneys in the state 15 treasury by section 67-1210, Idaho Code. Interest received on all such invest- 16 ments shall be paid into the environmental protection trust fund. 17 SECTION 14. That Section 39-3628, Idaho Code, be, and the same is hereby 18 amended to read as follows: 19 39-3628. WATER POLLUTION CONTROLACCOUNTFUND ESTABLISHED. There is 20 hereby created and established in the state treasury a separateaccountfund 21 to be known as the water pollution controlaccountfund. Theaccountfund 22 shall have paid into it: 23 1. The moneys provided for in section14-42563-3638, Idaho Code, that 24 are paid over to the state treasurer shall be deposited to the credit of the 25 water pollution controlaccountfund, and not to the credit of the state gen- 26 eralaccountfund; 27 2. All donations and grants from any source which may be used for the 28 provisions of this act; 29 3. Any other funds which may hereafter be provided by law. 30 SECTION 15. That Section 39-3630, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 39-3630. APPROPRIATION OF WATER POLLUTION CONTROLACCOUNTFUND -- PURPOSE 33 OF CHAPTER. Moneys in the water pollution controlaccountfund are hereby per- 34 petually appropriated for the following purposes: 351. To provide the state's matching share of grants made under the provi-36sions of this chapter.372.(1) To provide revenue for the payment of general obligation bonds 38 issued pursuant to section 39-3633, Idaho Code, and general obligation refund- 39 ing bonds issued pursuant to chapter 115, 1973 laws of the state of Idaho. 403. To provide for the operations of the water quality programs estab-41lished pursuant to this chapter.424. To provide direct grants or contracts for the purpose of providing43training for drinking water system and sewage treatment plant operating per-44sonnel.455.(2) To provide payments for contracts entered into pursuant to this 46 chapter. 476.(3) To provide funds to capitalize the wastewater facility loan account 48 established in section 39-3629, Idaho Code, including the required matching 49 share of federal capitalization funds. 507.(4) To provide funds to capitalize the drinking water loan account 19 1 established in section 39-7602, Idaho Code, including the required matching 2 share of federal capitalization funds. 3 (5) Pending such expenditure or use, surplus moneys in the water pollu- 4 tion control fund shall be invested by the state treasurer in the manner pro- 5 vided for idle state moneys in the state treasury by section 67-1210, Idaho 6 Code. Interest received on all such investments shall be paid into the water 7 pollution control fund. 8 SECTION 16. That Section 39-108, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 39-108. INVESTIGATION -- INSPECTION -- RIGHT OF ENTRY -- VIOLATION -- 11 ENFORCEMENT -- PENALTY -- INJUNCTIONS. (1.) The director shall cause investi- 12 gations to be madeupon the request of the board orupon receipt of informa- 13 tion concerning an alleged violation of this act or of any rule,regulation,14 permit or order promulgated thereunder, and may cause to be made such other 15 investigations as the director shall deem advisable. 16 (2.) For the purpose of enforcing any provision of this chapter or any 17 rule authorized in this chapter, the director or the director's designee shall 18 have the authority to: 19 (a.) Conduct a program of continuing surveillance and of regular or peri- 20 odic inspection of actual or potentialhealthenvironmental hazards, air 21 contamination sources, water pollution sources,noise sources,and of 22 solid waste disposal sites; 23 (b.) Enter at all reasonable times upon any private or public property, 24 upon presentation of appropriate credentials, for the purpose of inspect- 25 ing or investigating to ascertain possible violations of this act or of 26 rules,regulations,permits or orders adopted and promulgated by the 27 director or the board; 28 (c.) All inspections and investigations conducted under the authority of 29 this chapter shall be performed in conformity with the prohibitions 30 against unreasonable searches and seizures contained in the fourth amend- 31 ment to the constitution of the United States and section 17, article I, 32 of the constitution of the state of Idaho. The state shall not, under the 33 authority granted by this chapter, conduct warrantless searches of private 34 property in the absence of either consent from the property owner or occu- 35 pier or exigent circumstances such as a public health or environmental 36 emergency; 37 (d.) Any district court in and for the county in which the subject prop- 38 erty is located is authorized to issue a search warrant to the director 39 upon a showing of (i) probable cause to suspect a violation, or (ii) the 40 existence of a reasonable program of inspection. Any search warrant issued 41 under the authority of this chapter shall be limited in scope to the spe- 42 cific purposes for which it is issued and shall state with specificity the 43 manner and the scope of the search authorized. 44 (3.) Whenever the director determines that any person is in violation of 45 any provision of this act or any rule,regulation,permit or order issued or 46 promulgated pursuant to this act, the director may commence either of the fol- 47 lowing: 48 (a.) Administrative Enforcement Action. 49 (i.) Notice. The director may commence an administrative enforce- 50 ment action by issuing a written notice of violation. The notice of 51 violation shall identify the alleged violation with specificity, 52 shall specify each provision of the act, rule, regulation, permit or 53 order which has been violated, and shall state the amount of civil 20 1 penalty claimed for each violation. The notice of violation shall 2 inform the person to whom it is directed of an opportunity to confer 3 with the director or the director's designee in a compliance confer- 4 ence concerning the alleged violation. A written response may be 5 required within fifteen (15) days of receipt of the notice of viola- 6 tion by the person to whom it is directed. 7 (ii.) Scheduling compliance conference. If a recipient of a notice 8 of violation contacts the department within fifteen (15) days of the 9 receipt of the notice, the recipient shall be entitled to a compli- 10 ance conference. The conference shall be held within twenty (20) days 11 of the date of receipt of the notice, unless a later date is agreed 12 upon between the parties. If a compliance conference is not 13 requested, the director may proceed with a civil enforcement action 14 as provided in paragraph (b.) of this subsection. 15 (iii.) Compliance conference. The compliance conference shall provide 16 an opportunity for the recipient of a notice of violation to explain 17 the circumstances of the alleged violation and, where appropriate, to 18 present a proposal for remedying damage caused by the alleged viola- 19 tion and assuring future compliance. 20 (iv.) Consent order. If the recipient and the director agree on a 21 plan to remedy damage caused by the alleged violation and to assure 22 future compliance, they may enter into a consent order formalizing 23 their agreement. The consent order may include a provision providing 24 for payment of any agreed civil penalty. 25 (v.) Effect of consent order. A consent order shall be effective 26 immediately upon signing by both parties and shall preclude any civil 27 enforcement action for the same alleged violation. If a party does 28 not comply with the terms of the consent order, the director may seek 29 and obtain, in any appropriate district court, specific performance 30 of the consent order and such other relief as authorized in this 31 chapter. 32 (vi.) Failure to reach consent order. If the parties cannot reach 33 agreement on a consent order within sixty (60) days after the receipt 34 of the notice of violation or if the recipient does not request a 35 compliance conference as persubsection a.ii.paragraph (a)(ii) of 36 this section, the director may commence and prosecute a civil 37 enforcement action in district court, in accordance with subsection 38 (b.) of this section. 39 (b.) Civil enforcement action. The director may initiate a civil enforce- 40 ment action through the attorney general as provided in section 39-109, 41 Idaho Code. Civil enforcement actions shall be commenced and prosecuted in 42 the district court in and for the county in which the alleged violation 43 occurred, and may be brought against any person who is alleged to have 44 violated any provision of this act or any rule,regulation,permit or 45 order which has become effective pursuant to this act. Such action may be 46 brought to compel compliance with any provision of this act or with any 47 rule,regulation,permit or order promulgated hereunder and for any relief 48 or remedies authorized in this act. The director shall not be required to 49 initiate or prosecute an administrative action before initiating a civil 50 enforcement action. 51 (4.) No civil or administrative proceeding may be brought to recover for 52 a violation of any provision of this chapter or a violation of any rule,regu-53lation,permit or order issued or promulgated pursuant to this chapter, more 54 than two (2) years after the director had knowledge or ought reasonably to 55 have had knowledge of the violation. 21 1 (5.) Monetary penalties. 2 (a) Any person determined in a civil enforcement action to have violated 3 any provision of this act or any rule,regulation,permit or order promul- 4 gated pursuant to this act shall be liable for a civil penalty not to 5 exceed ten thousand dollars ($10,000) per violation or one thousand dol- 6 lars ($1,000) for each day of a continuing violation, whichever is greater 7 or ten thousand dollars ($10,000) for each separate air violation and day 8 of continuing air violation. The method of recovery of said penalty shall 9 be by a civil enforcement action in the district court in and for the 10 county where the violation occurred. All civil penalties collected under 11 this act shall be paid into the general fund of the state. Parties to an 12 administrative enforcement action may agree to a civil penalty as provided 13 in this subsection. 14 (b) The imposition or computation of monetary penalties may take into 15 account the seriousness of the violation, good faith efforts to comply 16 with the law, and an enforceable commitment by the person against whom the 17 penalty is directed to implement a supplemental environmental project. For 18 purposes of this section, "supplemental environmental project" means a 19 project which the person is not otherwise required to perform and which 20 prevents pollution, reduces the amount of pollutants reaching the environ- 21 ment, contributes to public awareness of environmental matters, or 22 enhances the quality of the environment. In evaluating a particular sup- 23 plemental environmental project proposal, preference may be given to those 24 projects with an environmental benefit which relatesto the violation or 25 the objectives of the underlying statute which was violated or which 26 enhances the quality of the environment in the general geographic location 27 where the violation occurred. 28 (6.) In addition to such civil penalties, any person who has been deter- 29 mined to have violated the provisions of this act or the rules,regulations,30 permits or orders promulgated thereunder, shall be liable for any expense 31 incurred by the state in enforcing the act, or in enforcing or terminating any 32 nuisance, source of environmental degradation, cause of sickness, or health 33 hazard. 34 (7.) No action taken pursuant to the provisions of this act or of any 35 other environmental protectionor healthlaw shall relieve any person from any 36 civil action and damages that may exist for injury or damage resulting from 37 any violation of this act or of the rules,regulations,permits and orders 38 promulgated thereunder. 39 (8.) In addition to, and notwithstanding other provisions of this act, in 40 circumstances of emergency creating conditions of imminent and substantial 41 danger to the public health or environment, the prosecuting attorney or the 42 attorney general may institute a civil action for an immediate injunction to 43 halt any discharge, emission or other activity in violation of provisions of 44 this act or rules,regulations,permits and orders promulgated thereunder. In 45 such action the court may issue an ex parte restraining order. 46 SECTION 17. That Section 39-109, Idaho Code, be, and the same is hereby 47 amended to read as follows: 48 39-109. COMMENCEMENT OF CIVIL ENFORCEMENT ACTIONS -- CRIMINAL ACTIONS 49 AUTHORIZED -- DUTIES OF ATTORNEY GENERAL. Upon request ofthe board orthe 50 director, it shall be the duty of the attorney general to institute and prose- 51 cute civil enforcement actions or injunctive actions as provided in section 52 39-108, Idaho Code, and to prosecute actions or proceedings for the enforce- 53 ment of any criminal provisions of this chapter. In addition, when deemed by 22 1 the director to be necessary, the director may retain or employ private coun- 2 sel. The attorney general may delegate the authority and duty under this sec- 3 tion to prosecute criminal actions to the prosecuting attorney of the county 4 in which such a criminal action may arise. 5 SECTION 18. That Section 39-110, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 39-110. REGISTRATION OF PERSONS ENGAGED IN OPERATIONS OR CONSTRUCTION 8 WHERE AIR POLLUTION IS A FACTOR -- REPORTS. The directoror boardmay require 9 the registration of persons engaged in operations which may result in air pol- 10 lution, and of persons causing, permitting or allowing construction of any 11 facility or new equipment capable of emitting air contaminants into the atmo- 12 sphere, or designed to eliminate or reduce emissions into the atmosphere, and 13 the filing of reports by them with the department relating to locations, size 14 of outlet, height of outlet, rate and period of emission and composition of 15 effluent, and such other information as the directororboardshall prescribe 16 relative to air pollution. 17 SECTION 19. That Section 39-111, Idaho Code, be, and the same is hereby 18 amended to read as follows: 19 39-111. AVAILABILITY OF RECORDS. Any records or other information fur- 20 nished to the board, department or to agents, contractors, or other represen- 21 tatives of the department under any provisions of this chapter shall be sub- 22 ject to disclosure according to chapter 3, title 9, Idaho Code. 23 SECTION 20. That Section 39-112, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 39-112. EMERGENCY -- ORDER -- HEARING -- MODIFICATION, AFFIRMANCE, OR 26 SETTING ASIDE. (1) Any other provision of law to the contrary notwithstanding, 27 if theboarddirector finds that a generalized condition of air pollution 28 exists and that it creates an imminent and substantial endangerment to the 29 public health or welfare constituting an emergency requiring immediate action 30 to protect human health or safety, theboarddirector, with the concurrence of 31 the governor as to the existence of such an emergency shall order persons 32 causing or contributing to the air pollution to reduce or discontinue immedi- 33 ately the emission of air contaminants, and such order shall fix a time and 34 place, not later than twenty-four (24) hours thereafter, for a hearing to be 35 held before theboarddirector. Not more than twenty-four (24) hours after the 36 commencement of such hearing, and without adjournment thereof, theboard37 director shall affirm, modify or set aside its order. 38 (2) In the absence of a generalized condition of air pollution of the 39 type referred to in subsection (1) of this section, if theboarddirector 40 finds that emissions from the operation of one (1) or more air contaminant 41 sources is causing imminent and substantial danger to human health or safety 42itthe director may bring suit through the attorney general in the appropriate 43 district court to immediately restrain any person causing or contributing to 44 the alleged pollution to stop the emission of air pollutants causing or con- 45 tributing to such pollution. If it is not practicable to assure prompt protec- 46 tion of public health or welfare or the environment by commencement of such 47 civil action, the director may order the person or persons responsible for the 48 operation or operations in question to reduce or discontinue emissions immedi- 49 ately without regard to other provisions of this act. In such event, the 23 1 requirements for hearing and affirmance, modification or setting aside of an 2 order set forth in subsection (1) of this section shall apply. For purposes of 3 subsections (1) and (2) of this section, imminent and substantial endangerment 4 or danger shall be interpreted no more broadly than these words are inter- 5 preted under section 303 of the clean air act, 42 USC 7603. 6 (3) Nothing in this section shall be construed to limit any power which 7 the governor or any other officer may have to declare an emergency and act on 8 the basis of such declaration, if such power is conferred by statute or con- 9 stitutional provision, or inheres in the office. 10 SECTION 21. That Section 39-113, Idaho Code, be, and the same is hereby 11 amended to read as follows: 12 39-113.RIGHTS OF TRANSFERREDTRANSFER OF EMPLOYEES.UNDER GROUP PLANS13UNAFFECTED.The provisions of this actAll employees of the division of envi- 14 ronmental quality and the INEEL oversight program of the department of health 15 and welfare are transferred to the department of environmental quality. Such 16 transfer shall in no manner affecttheirthe rights or privileges of any 17 transferred employeetransferredunder the public employeesretirement system 18 (chapter 13, title 59, Idaho Code), the group insurance plan (chapter 12, 19 title 59, Idaho Code), or personnel system (chapter 53, title 67, Idaho Code). 20 Additionally, when the department of health and welfare is used in terms of 21 environmental protection, it shall mean the department of environmental qual- 22 ity. 23 SECTION 22. That Section 39-114, Idaho Code, be, and the same is hereby 24 repealed. 25 SECTION 23. That Section 39-115, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 39-115. POLLUTION SOURCE PERMITS. 28 (1) (a) The director shall have the authority to issue pollution source 29 permits in compliance withthe regulationsrules establishedby the board30of health and welfarehereunder. 31 (b) Theboarddirector shall develop and recommend to the board for adop- 32 tion through rulemaking, criteriathrough rule making by November 15,331993,to determine insignificant activities and such sources or modifica- 34 tion with emissions at or below thedeminimisde minimis level which shall 35 not require either a permit to construct or a permit to operate; provided 36 however, that a registration of the activities or sources may be required. 37 (2) The director shall have the authority to sue in competent courts to 38 enjoin any threatened or continuing: 39 (a) Violations of pollution source permits or conditions thereof without 40 the necessity of a prior revocation of the permit; or 41 (b) Construction of an industrial or commercial air pollution source 42 without a permit required under this chapter orregulations adopted by the43boardrules adopted hereunder. 44 (3) The department is authorized to charge and collect a fee for process- 45 ing applications for industrial or commercial air pollution source permits in 46 accordance with a fee schedule established by the board pursuant to this 47 chapter. For fees charged for operating permits under title V of the federal 48 clean air act amendments of 1990, the department shall not charge a fee on any 49 hazardous air pollutant other than those listed under section 112 of the fed- 50 eral clean air act. The fee schedule shall be structured to provide an incen- 24 1 tive for emission reduction. 2 (4) The director may issue air emission source permits to construct a 3 facility to incinerate any waste or waste item contaminated with 4 polychlorinated biphenyls (PCBs) only if the director finds: 5 (a) The facility will not be sited in complex valley terrain where the 6 valley floor is less than five (5) miles wide and the valley walls rise 7 more than one thousand (1,000) feet; 8 (b) The facility has complied with local planning and zoning require- 9 ments; 10 (c) There has been an opportunity for public participation; and 11 (d) The facility will employ best available technology and instrumenta- 12 tion. 13 Subsection (4) of this section shall not apply to incineration activities 14 existing on or before January 1, 1987. 15 SECTION 24. That Section 39-116, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 39-116. COMPLIANCE SCHEDULES. The director shall have the authority to 18prepare for board approvalissue compliance schedule orders to any person who 19 is the source of any health hazard, air contaminant, water pollution,or solid 20 wasteor noisefor which regulatory standards have been established, including 21 regulatory standards then in effect or to become effective at a future date or 22 at future successive dates. The purpose of any compliance schedule order shall 23 be to identify and establish appropriate acts and time schedules for interim 24 actions by those persons who are or who will be affected by regulatory stan- 25 dards, such acts and schedules being designed to assure timely compliance by 26 those affected by the regulatory standards. Prior to the issuance of a compli- 27 ance schedule order, tThe director shall solicit the cooperation of the person 28 to whom the compliance schedule order will be directedin the selection of the29 by providing the person notice that identifies with reasonable specificity the 30 applicable statutes and rules, the events or occurrences that necessitate the 31 order, and the proposed terms ofsuchthe order and that informs the person 32 that a conference with the director to discuss the proposed terms of the order 33 shall be provided if requested within fifteen (15) days of receipt of the 34 notice. If requested, the director shall confer with the person and shall 35 solicit the person's cooperation in the selection of the terms of the order. 36 The compliance schedule order may be issued at any time after the conference, 37 if one is requested, and the expiration of sixty (60) days following the 38 receipt of the notice. Any compliance schedule orderwhen affirmed by the39boardshallbecome a final orderbe enforceable in the same manner as any 40 order entered pursuant to section 39-108, Idaho Code, except the order may be 41 challenged by an administrative appeal to the board as provided in section 42 39-107(5), Idaho Code. The order shall be effective and enforceable during an 43 administrative appeal, unless the board or its designated hearing officer 44 issues a stay of the order. 45 SECTION 25. That Section 39-118, Idaho Code, be, and the same is hereby 46 amended to read as follows: 47 39-118. REVIEW OF PLANS. (1.) Except as provided for dairy systems pursu- 48 ant to section 37-401, Idaho Code, all plans and specifications for the con- 49 struction of new sewage systems, sewage treatment plants or systems, other 50 waste treatment or disposal facilities, public water supply systems or public 51 water treatment systems or for modification or expansion to existing sewage 25 1 treatment plants or systems, waste treatment or disposal facilities, public 2 water supply systems or public water treatment systems, shall be submitted to 3 and approved by thedepartment of health and welfaredirector before construc- 4 tion may begin, and all construction shall be in compliance therewith. No 5 deviation shall be made from the approved plans and specifications without the 6 prior approval of thedepartmentdirector. Within thirty (30) days of the com- 7 pletion of construction, alteration, or modification of any new sewage sys- 8 tems, sewage treatment plants or systems, other waste treatment or disposal 9 facilities, public water supply systems or public water treatment systems, 10 complete and accurate plans and specifications depicting the actual construc- 11 tion, alteration, or modification performed must be submitted to thedepart-12ment of health and welfaredirector. If construction does not deviate from the 13 original plans previously submitted for approval, a statement to that effect 14 shall be filed with thedepartmentdirector. 15 (2.) All plans and specifications submitted to satisfy the requirements 16 of this section shall conform in style and quality to regularly accepted engi- 17 neering standards. Except with respect to plans and specifications for facili- 18 ties addressed in subsection (3.) of this section, and confined animal feeding 19 operations, the board may require that certain types of plans and specifica- 20 tions must be certified by registered professional engineers. If thedepart-21mentdirector determines that any particular facility or category of facili- 22 ties will produce no significant impact on the environment or on the public 23 health, thedepartmentdirector shall be authorized to waive the submittal or 24 approval requirement for that facility or category of facilities. 25 (3.) All plans and specifications for the construction, modification, 26 expansion, or alteration of waste treatment or disposal facilities for aqua- 27 culture facilities licensed by the department of agriculture for both commer- 28 cial fish propagation facilities as defined in section 22-4601, Idaho Code, 29 and sport fish propagation facilities whether private or operated or licensed 30 by the department of fish and game and other aquaculture facilities as defined 31 in the Idaho waste management guidelines for aquaculture operations, shall be 32 submitted to and approved by thedepartment of health and welfaredirector of 33 the department of environmental quality before construction may begin and all 34 construction shall be in compliance therewith. Thedepartmentdirector shall 35 review plans and specifications within forty-five (45) days of submittal and 36 notify the owner or responsible party of approval or disapproval. In the event 37 of disapproval thedepartmentdirector shall provide reasons for disapproval 38 in writing to the owner or responsible party. Plans and specifications shall 39 conform in style and quality to standard industry practices and guidelines 40 developed pursuant to this subsection. The director shall establish industry 41 guidelines or best management practices subcommittees composed of members of 42 the department, specific regulatory agencies for the industry, general public, 43 and persons involved in the industry to develop and update guidelines or best 44 management practices as needed. Within thirty (30) days of the completion of 45 the construction, modification, expansion or alteration of facilities subject 46 to this subsection, the owner or responsible party shall submit a statement to 47 thedepartmentdirector that the construction has been completed and is in 48 substantial compliance with the plans and specifications as submitted and 49 approved. Thedepartmentdirector shall conduct an inspection within sixty 50 (60) days of the date of submission of the statement and shall inform the 51 owner or responsible party of its approval of the construction or in the event 52 of nonapproval, the reasons for nonapproval. 53 SECTION 26. That Section 39-118D, Idaho Code, be, and the same is hereby 54 amended to read as follows: 26 1 39-118D. IDAHO AIR QUALITY PERMITTINGACCOUNTFUND. (1) All moneys 2 received from fees collected from the pollution sources requiring permitting 3 under title V of the federal clean air act amendments of 1990 shall be for- 4 warded to thedivision of environmental quality of thedepartment ofhealth5and welfareenvironmental quality and shall be paid into the Idaho air quality 6 permittingaccountfund which is hereby created in the office of the state 7 treasurer. 8 (2) Such moneys and all interest earned thereon shall be kept in the 9 Idaho air quality permittingaccountfund and shall be expended for the tech- 10 nical, legal and administrative support necessary for implementing the operat- 11 ing permit program required under title V of the federal clean air act amend- 12 ments of 1990. 13 (3) All salaries, costs and expenses incurred by thedivisiondepartment 14 of environmental quality in performing the duties and the exercise of its 15 powers in carrying out the operating permit program required under title V of 16 the federal clean air act amendments of 1990 shall be paid out of the air 17 quality permittingaccountfund. 18 SECTION 27. That Section 39-119, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 39-119. COLLECTION OF FEES FOR SERVICES. The department ofhealth and21welfareenvironmental quality is hereby authorized to charge and collect rea- 22 sonable fees, established by standards formulated by theboard of health and23welfaredirector and approved by the board through rulemaking, for any service 24 rendered by the department.The fee may be determined by a sliding scale25according to income or available assets. The department is hereby authorized26to require information concerning the total income and assets of each person27receiving services in order to determine the amount of fee to be charged.28 29 SECTION 28. That Section 39-120, Idaho Code, be, and the same is hereby 30 amended to read as follows: 31 39-120. DEPARTMENT OFHEALTH AND WELFAREENVIRONMENTAL QUALITY PRIMARY 32 ADMINISTRATIVE AGENCY -- AGENCY RESPONSIBILITIES. (1.) The department of 33health and welfareenvironmental quality is designated as the primary agency 34 to coordinate and administer ground water quality protection programs for the 35 state. 36 (2.) Recognizing that the department of water resources has the responsi- 37 bility to maintain the natural resource geographic information system for the 38 state and is the collector of baseline data for the state's water resources, 39 that the department ofhealth and welfareenvironmental quality has the 40 responsibility for collecting and monitoring data for water quality management 41 purposes and that the department of agriculture is responsible for regulating 42 the use of pesticides and fertilizers and for licensing applicators, the 43 department ofhealth and welfareenvironmental quality, the department of 44 water resources and the department of agriculturein coordination with the45ground water quality councilshall: 46 (a.) Develop a ground water monitoring plan, concurrently with the devel- 47 opment of a ground water quality plan, for development and administration 48 of a comprehensive ground water quality monitoring network, including 49 point of use, point of contamination and problem assessment monitoring 50 sites across the state and the assessment of ambient ground water quality 51 utilizing, to the greatest degree possible, collection and coordination of 52 existing data sources. 27 1b. Prepare an annual report during the life of the council detailing the2number and concentration of contaminants detected in ground water by loca-3tion.4c.(b) Establish a system or systems within state departments and politi- 5 cal subdivisions of the state for collecting, evaluating and disseminating 6 ground water quality data and information. 7d.(c) Develop and maintain a natural resource geographic information sys- 8 tem and comprehensive water resource data system. The system shall be 9 accessible to the public. 10 (3.) The responsible state departments or boards, after consultation with11the ground water quality council,should adopt rules which specify the general 12 standards for determining actions necessary to prevent ground water contamina- 13 tion and cleanup actions necessary to meet the goals of the state. 14 (4.) Theboard of health and welfaredirector of the department of envi- 15 ronmental quality mayadopt, by rule, after consultation with the ground water16quality councildevelop and recommend for approval by the board through rule- 17 making, ambient ground water quality standards for contaminants for which the 18 administrator of the United States environmental protection agency has estab- 19 lished drinking water maximum contaminant levels. Theboard, after consulta-20tion with the ground water quality council, may adopt by rule suchdirector 21 may develop and recommend for approval by the board, through rulemaking, 22 ground water quality standards for contaminants for which the administrator of 23 the United States environmental protection agency has not established drinking 24 water maximum contaminant levels. However, the existence of such standards, or 25 the lack of them, should not be construed or utilized in derogation of the 26 ground water quality protection goal and protection policies of the state. 27 (5.) The departments ofhealth and welfareenvironmental quality, water 28 resources and agriculture should take actions necessary to promote and assure 29 public confidence and public awareness of ground water quality protection. In 30 pursuing this goal, the departments and public health districts should make 31 public the results of investigations concerning ground water quality subject 32 to the restrictions contained in section 39-111, Idaho Code. 33 SECTION 29. That Section 39-121, Idaho Code, be, and the same is hereby 34 amended to read as follows: 35 39-121. DEFINITIONS. As used in section 39-102, Idaho Code, and in sec- 36 tions 39-120 through 39-127, Idaho Code: 37 (1.) "Cleanup" means removal, treatment or isolation of a contaminant 38 from ground water through the directed efforts of humans or the removal or 39 treatment of a contaminant in ground water through management practice or the 40 construction of barriers, trenches and other similar facilities for prevention 41 of contamination, as well as the use of natural processes such as ground water 42 recharge, natural decay and chemical or biological decomposition. 43 (2.) "Contaminant" means any chemical, ion, radionuclide, synthetic 44 organic compound, microorganism, waste or other substance which does not occur 45 naturally in ground water or which naturally occurs at a lower concentration. 46 (3.) "Contamination" means the direct or indirect introduction into 47 ground water of any contaminant caused in whole or in part by human activi- 48 ties. 49 (4.)"Council" or "ground water quality council" means the ground water50quality council created in section 39-122, Idaho Code.515."Ground water" means any water of the state which occurs beneath the 52 surface of the earth in a saturated geological formation of rock or soil. 53 (5) "Ground water quality plan" or "ground water quality protection plan" 28 1 means the Idaho ground water quality plan adopted by the legislature in sec- 2 tion 1, chapter 310, laws of 1992, and in section 1, chapter 273, laws of 3 1995. 4 SECTION 30. That Sections 39-122, 39-123, 39-124 and 39-125, Idaho Code, 5 be, and the same are hereby repealed. 6 SECTION 31. That Section 39-126, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 39-126. DUTIES OF STATE AND LOCAL UNITS OF GOVERNMENT. (1.) All state 9 agencies shall incorporate the adopted ground water quality protection plan in 10 the administration of their programs and shall have such additional authority 11 to promulgate rulesand regulationsto protect ground water quality as neces- 12 sary to administer such programs which shall be in conformity with the ground 13 water quality protection plan. Cities, counties and other political subdivi- 14 sions of the state shall incorporate the ground water quality protection plan 15 in their programs and are also authorized and encouraged to implement ground 16 water quality protection policies within their respective jurisdictions, pro- 17 vided that the implementation is consistent with and not preempted by the laws 18 of the state, the ground water quality protection plan and any rulesor regu-19lationspromulgated thereunder. All state agencies, cities, counties and other 20 political subdivisions shall cooperate withthe ground water quality council,21 the department ofhealth and welfareenvironmental quality, the department of 22 agriculture and the department of water resources in disseminating public 23 information and education materials concerning the use and protection of 24 ground water quality, in collecting ground water quality management data, and 25 in conducting research on technologies to prevent or remedy contamination of 26 ground water. 27 (2.) Notwithstanding any other provision of law to the contrary, except 28 as provided in subsection (3) of this section, whenever a state agency, city, 29 county or other political subdivision of the state issues a permit or license 30 which deals with the environment, the entity issuing the permit or license 31 shall take into account the effect the permitted or licensed activity will 32 have on the ground water quality of the state and it may attach conditions to 33 the permit or license in order to mitigate potential or actual adverse effects 34 from the permitted or licensed activity on the ground water quality of the 35 state. Nothing contained in this section shall authorize a state agency, city, 36 county or other political subdivision of the state to issue or require a per- 37 mit or license which it is not otherwise allowed by law to issue or require. 38 (3.) Except as otherwise provided by the ground water quality protection 39 plan, if a permit or license which deals with the environment is required to 40 be obtained from a state agency and that agency considers the effect of the 41 permitted or licensed activity on ground water quality, after notice to other 42 units of government which may otherwise have regulatory authority over the 43 activity which is the subject of the permit or license, a city, county or 44 other political subdivision of the state shall not prohibit, limit or other- 45 wise condition the rights of the permittee or licensee under the permit or 46 license on account of the effect the permitted or licensed activity may have 47 on ground water quality. 48 Nothing contained in this section shall be deemed to permit cities, coun- 49 ties or other political subdivisions of the state to regulate ground water 50 quality with respect to any activity for which another statute or other stat- 51 utes may have expressly or impliedly preempted such local ground water quality 52 regulation. 29 1 SECTION 32. That Section 39-129, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 39-129. APPLICABILITY -- DEFINITION OF LOCAL GOVERNMENT AND MANDATES -- 4 AUTHORIZATION FOR LOCAL GOVERNMENT AGREEMENTS -- ADOPTION OF RULES -- ESTAB- 5 LISHMENT OF SCHEDULES -- PRIORITY OF CONSIDERATIONS -- REPORT AND RECOMMENDA- 6 TIONS. (1) The provisions of this section shall apply to local governments 7 providing drinking water, municipal waste disposal, municipal sewage or waste 8 water disposal or treatment, or air pollution abatement, which can demonstrate 9 to the satisfaction of the department that increasing and cumulative regula- 10 tory requirements applicable to such services cannot be met in a timely and 11 reasonable manner. The provisions of the section do not apply where prohibited 12 by federal or state laws or regulations for the protection of human health and 13 the environment. 14 (2) For purposes of this section the term "local government" means the 15 government of a county or incorporated city, and the term "federal mandates" 16 means those requirements arising from federal statutes or subsequent regula- 17 tions administered by the United States environmental protection agency. 18 (3) The department is hereby authorized to enter into agreements with 19 local governments. The agreement may include a binding schedule enforceable 20 under this chapter for the improvement, modification, construction, or other 21 actions, necessary in order for the local government to come into compliance 22 as expeditiously as practicable with human health and environmental protection 23 statutes and rules stemming from federal mandates. 24 (4) The department may propose, and the board adopt, rules necessary for 25 the implementation of this section. 26 (5) In establishing any local government agreement schedule, the term of 27 the agreement shall not exceed fifteen (15) years, although successive agree- 28 ments may be entered into. All agreements must be signed by the director or 29 his designee and the mayor of the city or county commissioners of the county, 30 as appropriate. All agreements are enforceable as orders under the provisions 31 of this chapter. 32 (6) Agreements and schedules entered into under this act shall take into 33 account, in descending priority the: 34 (a) Protection of public health; 35 (b) Protection of the environment; 36 (c) Current tax structure and rates as compared to other local govern- 37 ments:; 38 (d) Ability of the local government to pay for costs of compliance; 39 (e) Current fiscal obligations of the local government; 40 (f) Other factors as determined by the department or the board. 41(7) The department is directed to conduct a study in cooperation with42local governments, with emphasis on smaller cities, of cumulative public43health and environmental mandates imposed by the United States environmental44protection agency. The department shall provide a written and oral report to45the 1995 regular session of the legislature describing methods and results of46the study, along with recommendations as to how cumulative public health and47environmental mandates may be implemented so as to most efficiently and prac-48tically protect human health and the environment within the capabilities of49local government. The emphasis of the study shall be to investigate and report50on:51(a) The fiscal impacts of cumulative mandates;52(b) The relative public health and environmental protection priorities;53(c) The optimum content and structure of local government agreements;54(d) The methods, current and proposed, available to local government for30 1meeting the requirements of federal mandates most efficiently taking into2account local public health, environmental and fiscal considerations.3 SECTION 33. That Section 39-414, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 39-414. POWERS AND DUTIES OF DISTRICT BOARD. The district board of health 6 shall have and may exercise the following powers and duties: 7 (1) To administer and enforce all state and district health laws, regula- 8 tions, and standards. 9 (2) To do all things required for the preservation and protection of the 10 public health and preventive health, and such other things delegated by the 11 director of the state department of health and welfare or the director of the 12 department of environmental quality and this shall be authority for the direc- 13 tor(s) to so delegate. 14 (3) To determine the location of its main office and to determine the 15 location, if any, of branch offices. 16 (4) To enter into contracts with any other governmental or public agency 17 whereby the district board agrees to render services to or for such agency in 18 exchange for a charge reasonably calculated to cover the cost of rendering 19 such service. This authority is to be limited to services voluntarily rendered 20 and voluntarily received and shall not apply to services required by statute, 21 rule, and regulations, or standards promulgated pursuant to this act or chap- 22 ter 1, title 39, Idaho Code. 23 (5) All moneys or payment received or collected by gift, grant, devise, 24 or any other way shall be deposited to the respective division or subaccount 25 of the public health district in the public health district fund authorized by 26 section 39-422, Idaho Code. 27 (6) To establish a fiscal control policy required by the state control- 28 ler. 29 (7) To cooperate with the state boardandof health and welfare, the 30 department of health and welfare, the board of environmental quality and the 31 department of environmental quality. 32 (8) To enter into contracts with other governmental agencies, and this 33 act hereby authorizes such other agencies to enter into contracts with the 34 health district, as may be deemed necessary to fulfill the duties imposed upon 35 the district in providing for the health of the citizens within the district. 36 (9) To purchase, exchange or sell real property and construct, rent, or 37 lease such buildings as may be required for the accomplishment of the duties 38 imposed upon the district and to further obtain such other personal property 39 as may be necessary to its functions. 40 (10) To accept, receive and utilize any gifts, grants, or funds and per- 41 sonal and real property that may be donated to it for the fulfillment of the 42 purposes outlined in this act. 43 (11) To establish a charge whereby the board agrees to render services to 44 or for entities other than governmental or public agencies for an amount rea- 45 sonably calculated to cover the cost of rendering such service. 46 (12) To enter into a lease of real or personal property as lessor or les- 47 see, or other transaction with the Idaho health facilities authority for a 48 term not to exceed ninety-nine (99) years upon a determination by the district 49 board that the real or personal property to be leased is necessary for the 50 purposes of the district, and to pledge nontax revenues of the district to 51 secure the district's obligations under such leases. 52 (13) To administer and certify solid waste disposal site operations, clo- 53 sure, and post closure procedures established by statute or regulation in 31 1 accordance with provisions of chapter 74, title 39, Idaho Code, in a manner 2 equivalent to the site certification process set forth in section 39-7408, 3 Idaho Code. 4 (14) To select a board member to serve as trustee on the board of trustees 5 of the Idaho district boards of health. 6 SECTION 34. That Section 39-417, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 39-417. HEARINGS BY DISTRICT BOARD -- OATHS -- WITNESSES -- SUBPOENAS. 9 (1) Any person, association, public or private agency, corporation, or the 10 district director alleging a violation of this act, the rulesand regulations11 promulgated thereunder, or any matter within the jurisdiction of the district 12 board, or any alleged violator thereof, may, pursuant to the provisions of 13 chapter 52, title 67, Idaho Code, and the rulesand regulationspromulgated 14 thereunder by the state board of health and welfare or the board of environ- 15 mental quality, seek a hearing before the district board and/or such other 16 relief or remedy as is provided or available. 17 (2) The hearings herein provided may be conducted by the district board 18 or by its designated agent and in either case the district board or its agent 19 shall have the same powers and authority set out in subsection (43) of section 20 39-107, Idaho Code. The provisions of this section shall not apply to the 21 internal administrative affairs of the district board or department nor to its 22 subordinate sections and units. 23 SECTION 35. That Section 39-419, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 39-419. VIOLATION OF PUBLIC HEALTH LAWS -- MISDEMEANOR -- CIVIL LIABILITY 26 FOR EXPENSE. (1) It shall be unlawful for any person, association, or corpora- 27 tion, and the officers thereof towilfullywillfully violate, disobey, or dis- 28 regard the provisions of the public health laws or the terms of any lawful 29 notice, order, standard, rule, regulation, or ordinance issued pursuant 30 thereto; or 31 (2) Any person, association, or corporation, or the officers thereof, 32 violating any of the provisions of this chapter shall be deemed guilty of a 33 misdemeanor, and upon conviction thereof shall be punished by a fine not 34 exceeding three hundred dollars ($300), or by imprisonment in the county jail 35 for a term not exceeding six (6) months, or by both such fine and imprison- 36 ment. In addition to fine and imprisonment, any person, association or corpo- 37 ration, or the officers thereof, found to be in violation of this act or the 38 rulesand regulationspromulgated thereunder shall be liable for any expense 39 incurred by the district board of health in enforcing this act, or in removing 40 or terminating any nuisance, source of filth, cause of sickness, or health 41 hazard. Conviction under the penalty provisions of this act or any other 42 health law or rulesand regulationspromulgated thereunder shall not relieve 43 any person from any civil action in damages that may exist for any injury 44 resulting from any violation of the public health laws or rulesand regula-45tionspromulgated by the district board of health. 46 (3) A violator of any law,or ruleor regulationwithin the jurisdiction 47 of the district shall be liable in an amount not in excess of the limits pre- 48 scribed insubsection 5. ofsection 39-108, Idaho Code. The district board may 49 seek recovery by commencing an action in the district court of the county 50 wherein the violation occurred. Amounts recovered shall be deposited as 51 required by the provisions of section 39-414(5), Idaho Code. 32 1 SECTION 36. That Section 42-202B, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 42-202B. DEFINITIONS. Whenever used in this chapter, the term: 4 (1) "Consumptive use" means that portion of the annual volume of water 5 diverted under a water right that is transpired by growing vegetation, evapo- 6 rated from soils, converted to nonrecoverable water vapor, incorporated into 7 products, or otherwise does not return to the waters of the state. Consumptive 8 use does not include any water that falls as precipitation directly on the 9 place of use unless the precipitation is captured, controlled and used under 10 an appurtenant water right. 11 (2) "Municipality" means a city incorporated under section 50-102, Idaho 12 Code, a county, or the state of Idaho acting through a department or institu- 13 tion. 14 (3) "Municipal provider" means: 15 (a)aA municipality that provides water for municipal purposes to its 16 residents and other users within its service area; 17 (b)aAny corporation or association holding a franchise to supply water 18 for municipal purposes, or a political subdivision of the state of Idaho 19 authorized to supply water for municipal purposes, and which does supply 20 water, for municipal purposes to users within its service area; or 21 (c)aA corporation or association which supplies water for municipal pur- 22 poses through a water system regulated by the state of Idaho as a "public 23 water supply" as described in section 39-103(150), Idaho Code. 24 (4) "Municipal purposes" refers to water for residential, commercial, 25 industrial, irrigation of parks and open space, and related purposes, exclud- 26 ing use of water from geothermal sources for heating, which a municipal pro- 27 vider is entitled or obligated to supply to all those users within a service 28 area, including those located outside the boundaries of a municipality served 29 by a municipal provider. 30 (5) "Planning horizon" refers to the length of time that the department 31 determines is reasonable for a municipal provider to hold water rights to meet 32 reasonably anticipated future needs. The length of the planning horizon may 33 vary according to the needs of the particular municipal provider. 34 (6) "Reasonably anticipated future needs" refers to future uses of water 35 by a municipal provider for municipal purposes within a service area which, on 36 the basis of population and other planning data, are reasonably expected to be 37 required within the planning horizon of each municipality within the service 38 area not inconsistent with comprehensive land use plans approved by each 39 municipality. Reasonably anticipated future needs shall not include uses of 40 water within areas overlapped by conflicting comprehensive land use plans. 41 (7) "Service area" means that area within which a municipal provider is 42 or becomes entitled or obligated to provide water for municipal purposes. For 43 a municipality, the service area shall correspond to its corporate limits, or 44 other recognized boundaries, including changes therein after the permit or 45 license is issued. The service area for a municipality may also include areas 46 outside its corporate limits, or other recognized boundaries, that are within 47 the municipality's established planning area if the constructed delivery sys- 48 tem for the area shares a common water distribution system with lands located 49 within the corporate limits. For a municipal provider that is not a municipal- 50 ity, the service area shall correspond to the area that it is authorized or 51 obligated to serve, including changes therein after the permit or license is 52 issued. 53 SECTION 37. That Section 57-1701, Idaho Code, be, and the same is hereby 33 1 amended to read as follows: 2 57-1701. CREATION OF CENTRAL CANCER REGISTRY FUND -- PURPOSE. There is 3 hereby created and established in the state treasury a fund to be known as the 4 "central cancer registry fund" to which shall be deposited the revenues 5 derived from the tax imposed in section 63-2506, Idaho Code. All moneys now or 6 hereafter in the central cancer registry fund are hereby dedicated for the 7 purpose of contracting for and obtaining the services of a continuous registry 8 of all cancer patients in the state of Idaho and maintaining cooperative 9 exchange of information with other states providing similar cancer registry. 10 Thestate boarddepartment of health and welfare, created in section 39-107,11Idaho Code,is charged with the administration of this fund for the purposes 12 specified herein. The amount of money credited to the central cancer registry 13 fund from the tax imposed in section 63-2506, Idaho Code, shall not exceed the 14 distribution provided in section 63-2520(b)(3), Idaho Code, and the current 15 fiscal year's appropriation, and any moneys in excess thereof derived from 16 this tax shall be credited to the general fund. All claims against the fund 17 shall be examined, audited and allowed in the manner now or hereafter provided 18 by law for claims against the state of Idaho. 19 SECTION 38. That Title 56, Idaho Code, be, and the same is hereby amended 20 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 21 ter 10, Title 56, Idaho Code, and to read as follows: 22 CHAPTER 10 23 DEPARTMENT OF HEALTH AND WELFARE 24 56-1001. DEFINITIONS. Whenever used or referred to in this chapter, 25 unless a different meaning clearly appears from the context, the following 26 terms shall have the following meanings: 27 (1) "Board" means the board of health and welfare as created in section 28 56-1005, Idaho Code. 29 (2) "Department" means the department of health and welfare. 30 (3) "Director" means the director of the department of health and wel- 31 fare. 32 (4) "Laboratory" means not only facilities for biological, serological, 33 biophysical, cytological and pathological tests, but also facilities for the 34 chemical or other examination of materials from water, air or other sub- 35 stances. 36 (5) "Person" means any individual, association, partnership, firm, joint 37 stock company, trust, estate, political subdivision, public or private corpo- 38 ration, state or federal governmental department, agency or instrumentality, 39 or any other legal entity which is recognized by law as the subject of rights 40 and duties. 41 (6) "Public swimming pool" means an artificial structure, and its appur- 42 tenances, which contains water more than two (2) feet deep which is used or 43 intended to be used for swimming or recreational bathing, and which is for the 44 use of any segment of the public pursuant to a general invitation but not an 45 invitation to a specific occasion or occasions. 46 (7) "State" means the state of Idaho. 47 (8) "Substantive" means that which creates, defines or regulates the 48 rights of any person or implements, interprets or prescribes law or policy, 49 but does not include statements concerning only the internal management of the 50 department and not affecting private rights or procedures available to the 51 public. 34 1 56-1002. DEPARTMENT OF HEALTH AND WELFARE -- CREATION -- ADMINISTRATIVE 2 REGIONS. (1) There is created and established in the state government a 3 department of health and welfare which shall, for the purposes of section 20, 4 article IV of the constitution of the state of Idaho, be an executive depart- 5 ment of the state government. The executive and administrative power of this 6 department shall be vested in the director of the department who shall be 7 appointed by and serve at the pleasure of the governor, with the advice and 8 consent of the senate. 9 (2) The department shall be organized into such administrative and gen- 10 eral services divisions as may be necessary in order to efficiently administer 11 the department. Each division shall be headed by a division administrator who 12 shall be appointed by and serve at the pleasure of the director with the con- 13 currence of the board. 14 (3) In order to provide more effective and economical access to the state 15 health and social services by the people of Idaho, the governor is hereby 16 authorized to establish substate administrative regions. In the designation of 17 these regions specific consideration shall be given to the geographic and eco- 18 nomic convenience of the citizens included therein. Each substate administra- 19 tive region shall be headed by a regional director who shall be appointed by 20 and serve at the pleasure of the director with the concurrence of the board. 21 56-1003. POWERS AND DUTIES OF THE DIRECTOR. The director shall have the 22 following powers and duties: 23 (1) All of the powers and duties of the department of public health, the 24 department of health, the board of health and all nonenvironmental protection 25 duties of the department of health and welfare are hereby vested to the direc- 26 tor of the department of health and welfare. Provided however, that rulemaking 27 and hearing functions relating to public health and licensure and certifica- 28 tion standards shall be vested in the board of health and welfare. The direc- 29 tor shall have all such powers and duties as may have been or could have been 30 exercised by his predecessors in law, including the authority to adopt, pro- 31 mulgate, and enforce rules in those circumstances when the authority to adopt, 32 promulgate, and enforce such rules is not vested in the board of health and 33 welfare, and shall be the successor in law to all contractual obligations 34 entered into by predecessors in law. All rulemaking proceedings and hearings 35 of the director shall be governed by the provisions of chapter 52, title 67, 36 Idaho Code. 37 (2) The director shall, pursuant and subject to the provisions of the 38 Idaho Code, and the provisions of this chapter, formulate and recommend to the 39 board rules, codes and standards, as may be necessary to deal with problems 40 related to personal health, and licensure and certification requirements per- 41 tinent thereto, which shall, upon adoption by the board, have the force of law 42 relating to any purpose which may be necessary and feasible for enforcing the 43 provisions of this chapter including, but not limited to, the maintenance and 44 protection of personal health. Any such rule or standard may be of general 45 application throughout the state or may be limited as to times, places, cir- 46 cumstances or conditions in order to make due allowance for variations 47 therein. 48 (3) The director, under the rules, codes or standards adopted by him, 49 shall have the general supervision of the promotion and protection of the 50 life, health and mental health of the people of this state. The powers and 51 duties of the director shall include, but not be limited to, the following: 52 (a) The issuance of licenses and permits as prescribed by law and by the 53 rules of the board; 54 (b) The supervision and administration of laboratories and the supervi- 35 1 sion and administration of standards of tests for environmental pollution, 2 chemical analyses and communicable diseases. The director may require that 3 laboratories operated by any city, county, institution, person, firm or 4 corporation for health or environmental purposes conform to standards set 5 by the board of health and welfare and the board of environmental quality; 6 (c) The supervision and administration of a mental health program, which 7 shall include services for the evaluation, screening, custody and treat- 8 ment of the mentally ill and those persons suffering from a mental defect, 9 or mental defects; 10 (d) The enforcement of minimum standards of health, safety and sanitation 11 for all public swimming pools within the state; 12 (e) The supervision and administration of the various schools, hospitals 13 and institutions that were the responsibility of the board of health; 14 (f) The supervision and administration of services dealing with the prob- 15 lems of alcoholism including, but not limited to, the care and rehabilita- 16 tion of persons suffering from alcoholism; 17 (g) The establishment of liaison with other governmental departments, 18 agencies and boards in order to effectively assist other governmental 19 entities with the planning for the control of or abatement of health prob- 20 lems. All of the rules and standards adopted by the board shall apply to 21 state institutions; 22 (h) The supervision and administration of an emergency medical service 23 program including, but not limited to, assisting other governmental agen- 24 cies and local governmental units, in providing first aid emergency medi- 25 cal services and for transportation of the sick and injured; 26 (i) The supervision and administration of administrative units whose 27 responsibility shall be to assist and encourage counties, cities, other 28 governmental units, and industries in the control of and/or abatement of 29 health problems; 30 (j) The enforcement of all laws, rules, codes and standards relating to 31 health. 32 (4) The director, when so designated by the governor, shall have the 33 power to apply for, receive on behalf of the state, and utilize any federal 34 aid, grants, gifts, gratuities, or moneys made available through the federal 35 government. 36 (5) The director shall have the power to enter into and make contracts 37 and agreements with any public agencies or municipal corporations for facili- 38 ties, land, and equipment when such use will have a beneficial, recreational, 39 or therapeutic effect or be in the best interest in carrying out the duties 40 imposed upon the department. 41 The director shall also have the power to enter into contracts for the 42 expenditure of state matching funds for local purposes. This subsection will 43 constitute the authority for public agencies or municipal corporations to 44 enter into such contracts and expend money for the purposes delineated in such 45 contracts. 46 (6) The director is authorized to adopt an official seal to be used on 47 appropriate occasions, in connection with the functions of the department or 48 the board, and such seal shall be judicially noticed. Copies of any books, 49 records, papers and other documents in the department shall be admitted in 50 evidence equally with the originals thereof when authenticated under such 51 seal. 52 56-1004. DIRECTOR -- ADDITIONAL POWERS AND DUTIES. (1) The director shall 53 exercise the following powers and duties in addition to all other powers and 54 duties inherent in the position: 36 1 (a) Prescribe such rules as may be necessary for the administration of 2 the department, the conduct and duties of the employees, the orderly and 3 efficient management of department business, and the custody, use and 4 preservation of department records, papers, books and property belonging 5 to the state; 6 (b) Employ such personnel as may be deemed necessary, prescribe their 7 duties and fix their compensation within the limits provided by the state 8 personnel system law; 9 (c) Administer oaths for all purposes required in the discharge of his 10 duties; 11 (d) Prescribe the qualifications of all personnel of the department on a 12 nonpartisan merit basis, in accordance with the Idaho personnel system 13 law, provided however, that the administrators in charge of any division 14 of the department, and the administrators in charge of the state veterans 15 homes, state hospital north, state hospital south, and Idaho state school 16 and hospital shall serve at the pleasure of the director; 17 (e) Create such units, sections and subdivisions as are or may be neces- 18 sary for the proper and efficient functioning of the department. 19 (2) The department is empowered to acquire, by purchase, lease or 20 exchange, any property which in the judgment of the department is needful for 21 the operation of the facilities and programs for which it is responsible and 22 to dispose of, by sale, lease or exchange, any property which in the judgment 23 of the department is not needful for the operation of the same. 24 56-1005. BOARD -- COMPOSITION -- OFFICERS -- COMPENSATION -- POWERS -- 25 SUBPOENA -- DEPOSITIONS -- REVIEW -- RULES. (1) The board of health and wel- 26 fare shall consist of seven (7) members who shall be appointed by the gover- 27 nor, with the advice and consent of the senate. The members may be removed by 28 the governor for cause. Each member of the board shall be a citizen of the 29 United States, a resident of the state of Idaho, and a qualified elector. Not 30 more than four (4) members of the board shall be from any one (1) political 31 party. All members of the board shall be chosen with due regard to their 32 knowledge and interest in health and social services. 33 (2) The members of the board of health and welfare, serving on the effec- 34 tive date of this act shall continue in office as members of the board of 35 health and welfare. All members of the board of health and welfare shall serve 36 four (4) year terms. 37 (3) The board annually shall elect a chairman, a vice chairman, and a 38 secretary, and shall hold such meetings as may be necessary for the orderly 39 conduct of its business, and such meetings shall be held from time to time on 40 seventy-two (72) hours' notice of the chairman or a majority of the members. 41 Five (5) members shall be necessary to constitute a quorum at any regular or 42 special meeting and the action of the majority of members present shall be the 43 action of the board. The members of the board shall be compensated as provided 44 in section 59-509(h), Idaho Code. 45 (4) The board, in furtherance of its duties under this act and under its 46 rules, shall have the power to administer oaths, certify to official acts, and 47 to issue subpoenas for the attendance of witnesses and the production of 48 papers, books, accounts, documents and testimony. The board may, if a witness 49 refuses to attend or testify, or to produce any papers required by such sub- 50 poenas, report to the district court in and for the county in which the pro- 51 ceeding is pending, by petition, setting forth that due notice has been given 52 of the time and place of attendance of said witnesses, or the production of 53 said papers, that the witness has been properly summoned, and that the witness 54 has failed and refused to attend or produce the papers required by this sub- 37 1 poena before the board, or has refused to answer questions propounded to him 2 in the course of said proceedings, and ask an order of said court compelling 3 the witness to attend and testify and produce said papers before the board. 4 The court, upon the petition of the board, shall enter an order directing the 5 witness to appear before the court at a time and place to be fixed by the 6 court in such order, the time to be not more than ten (10) days from the date 7 of the order, and then and there shall show cause why he has not attended and 8 testified or produced said papers before the board. A copy of said order shall 9 be served upon said witness. If it shall appear to the court that said sub- 10 poena was regularly issued by the board and regularly served, the court shall 11 thereupon order that said witness appear before the board at the time and 12 place fixed in said order, and testify or produce the required papers. Upon 13 failure to obey said order, said witness shall be dealt with for contempt of 14 court. 15 (5) The director, his designee, or any party to the action may, in an 16 investigation or hearing before the board, cause the deposition or interroga- 17 tory of witnesses or parties residing within or without the state, to be taken 18 in the manner prescribed by law for like depositions and interrogatories in 19 civil actions in the district court of this state, and to that end may compel 20 the attendance of said witnesses and production of books, documents, papers 21 and accounts. 22 (6) Any person aggrieved by an action or inaction of the department of 23 health and welfare shall be afforded an opportunity for a fair hearing upon 24 request therefor in writing pursuant to chapter 52, title 67, Idaho Code, and 25 the rules promulgated thereunder. In those cases where the board has been 26 granted the authority to hold such a hearing pursuant to a provision of the 27 Idaho Code, the hearing may be conducted by the board at a regular or special 28 meeting, or the board may designate hearing officers, who shall have the power 29 and authority to conduct hearings in the name of the board at any time and 30 place. In any hearing, a member of the board or hearing officer designated by 31 it, shall have the power to administer oaths, examine witnesses, and issue in 32 the name of the board subpoenas requiring the testimony of witnesses and the 33 production of evidence relevant to any matter in the hearing. 34 (7) Any person adversely affected by a final determination of the board, 35 may secure judicial review by filing a petition for review as prescribed under 36 the provisions of chapter 52, title 67, Idaho Code. The petition for review 37 shall be served upon the chairman of the board, the director of the depart- 38 ment, and upon the attorney general of the state of Idaho. Such service shall 39 be jurisdictional and the provisions of this section shall be the exclusive 40 procedure for appeal. 41 (8) The board, by the affirmative vote of four (4) of its members, may 42 adopt, amend or repeal the rules, codes, and standards of the department, that 43 are necessary and feasible in order to carry out the purposes and provisions 44 of this act and to enforce the laws of this state. 45 The rules and orders so adopted and established shall have the force and 46 effect of law and may deal with any matters deemed necessary and feasible for 47 protecting the health of the state. 48 (9) All rulemaking proceedings and hearings of the board shall be gov- 49 erned by the provisions of chapter 52, title 67, Idaho Code. 50 56-1006. TITLE SUPERSEDED. Except with respect to environmental protec- 51 tion functions, wherever the words "board of health" appear in the Idaho Code, 52 they shall mean the board of health and welfare, and wherever the words 53 "administrator of health" appear in the Idaho Code, they shall mean the direc- 54 tor of the department of health and welfare, and wherever the words 38 1 "department of health" appear in the Idaho Code, they shall mean the depart- 2 ment of health and welfare. 3 56-1007. COLLECTION OF FEES FOR SERVICES. The department of health and 4 welfare is hereby authorized to charge and collect reasonable fees, estab- 5 lished by rule, for any service rendered by the department. The fee may be 6 determined by a sliding scale according to income or available assets. The 7 department is hereby authorized to require information concerning the total 8 income and assets of each person receiving services in order to determine the 9 amount of the fee to be charged. 10 56-1008. CRIMINAL VIOLATION -- PENALTY. Any person who willfully or neg- 11 ligently violates any of the provisions of the public health laws or the terms 12 of any lawful notice, order, permit, standard, or rule issued pursuant 13 thereto, shall be guilty of a misdemeanor. 14 SECTION 39. (1) This act shall be in full force and effect on and after 15 July 1, 2000, except that the Division of Environmental Quality shall have one 16 (1) year thereafter to accomplish necessary changes to complete the physical 17 transition to the new department. 18 (2) Notwithstanding any other provisions of Chapter 52, Title 67, Idaho 19 Code, the Administrative Rules Coordinator shall redesignate all references to 20 the Division of Environmental Quality which appear in the master rule database 21 maintained by the coordinator, to the Department of Environmental Quality 22 without further republication or promulgation, to comply with the provisions 23 of this act. Until such time as a republication of a rule occurs, any refer- 24 ence in a rule to the Division of Environmental Quality shall mean the Depart- 25 ment of Environmental Quality.
AS1426|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000Moved by Seconded by IN THE SENATE SENATE AMENDMENT TO S.B. NO. 1426 1 AMENDMENT TO SECTION 12 2 On page 17 of the printed bill, in line 41, delete "accounting system" and 3 insert: "statewide accounting and reporting system". 4 AMENDMENTS TO SECTION 14 5 On page 18, in line 43, delete "know" and insert: "known"; in line 44, 6 delete "perpetually"; and in line 50, following "protection" insert: "trust". 7 AMENDMENTS TO THE BILL 8 On page 18, in line 1, following "39-107C." delete the remainder of the 9 line and delete all of lines 2 through 37, and in line 38, delete "39-107D."; 10 and following line 50 insert: 11 "SECTION 14. That Section 39-3628, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 39-3628. WATER POLLUTION CONTROLACCOUNTFUND ESTABLISHED. There is 14 hereby created and established in the state treasury a separateaccountfund 15 to be known as the water pollution controlaccountfund. Theaccountfund 16 shall have paid into it: 17 1. The moneys provided for in section14-42563-3638, Idaho Code, that 18 are paid over to the state treasurer shall be deposited to the credit of the 19 water pollution controlaccountfund, and not to the credit of the state gen- 20 eralaccountfund; 21 2. All donations and grants from any source which may be used for the 22 provisions of this act; 23 3. Any other funds which may hereafter be provided by law. 24 SECTION 15. That Section 39-3630, Idaho Code, be, and the same is hereby 25 amended to read as follows: 26 39-3630. APPROPRIATION OF WATER POLLUTION CONTROLACCOUNTFUND -- PURPOSE 27 OF CHAPTER. Moneys in the water pollution controlaccountfund are hereby per- 28 petually appropriated for the following purposes: 291. To provide the state's matching share of grants made under the provi-30sions of this chapter.312.(1) To provide revenue for the payment of general obligation bonds 32 issued pursuant to section 39-3633, Idaho Code, and general obligation refund- 33 ing bonds issued pursuant to chapter 115, 1973 laws of the state of Idaho. 343. To provide for the operations of the water quality programs estab-35lished pursuant to this chapter.364. To provide direct grants or contracts for the purpose of providing37training for drinking water system and sewage treatment plant operating per-38sonnel.395.(2) To provide payments for contracts entered into pursuant to this 2 1 chapter. 26.(3) To provide funds to capitalize the wastewater facility loan account 3 established in section 39-3629, Idaho Code, including the required matching 4 share of federal capitalization funds. 57.(4) To provide funds to capitalize the drinking water loan account 6 established in section 39-7602, Idaho Code, including the required matching 7 share of federal capitalization funds. 8 (5) Pending such expenditure or use, surplus moneys in the water pollu- 9 tion control fund shall be invested by the state treasurer in the manner pro- 10 vided for idle state moneys in the state treasury by section 67-1210, Idaho 11 Code. Interest received on all such investments shall be paid into the water 12 pollution control fund."; and renumber subsequent sections of the bill accord- 13 ingly. 14 CORRECTIONS TO TITLE 15 On page 1, delete lines 27 through 29 and insert: "THE ADDITION OF A NEW 16 SECTION 39-107C, IDAHO CODE, TO CREATE THE ENVIRONMENTAL"; in line 30, follow- 17 ing "FUND;" insert: "AMENDING SECTION 39-3628, IDAHO CODE, TO PROVIDE CORRECT 18 TERMINOLOGY FOR THE WATER POLLUTION CONTROL FUND AND TO PROVIDE FOR REMITTANCE 19 OF SALES TAX MONEYS; AMENDING SECTION 39-3630, IDAHO CODE, TO PROVIDE CORRECT 20 TERMINOLOGY, TO REVISE PURPOSES THAT MONEY IN THE WATER POLLUTION CONTROL FUND 21 MAY BE USED FOR AND TO PROVIDE THAT INTEREST EARNED ON MONEYS INVESTED FROM 22 THE FUND SHALL BE RETURNED TO THE FUND;".
STATEMENT OF PURPOSE RS09424A1 The purpose of this legislation is to establish the Department of Environmental Quality. Protection of human health and the environment pursuant to existing state law can most effectively be achieved by vesting responsibility for environmental protection in a freestanding state agency. This legislation transfers to the new Department of Environmental Quality 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. The legislation also creates a citizen board to oversee the Department. FISCAL IMPACT The Department shall utilize the designated legislative appropriations made to the Division of Environmental Quality for environmental program functions for fiscal year 2001. No additional funding or increases in staffing will be requested. The fiscal impact from interest generated from funds held in the Water Pollution Control Fund is estimated at $50,000 to the General Fund in FY 2001. CONTACTS Name: Steve Allred, Division of Environmental Quality Michael Bogert, Governor's Office Phone: 373-0240, 334-2100 STATEMENT OF PURPOSE/FISCAL NOTE S 1426aa REPRINT REPRINT REPRINT REPRINT REPRINT REPRINT