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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 - 2000
IN 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.
21 1.(3) "Board" means the board of health and welfare environmental
22 quality.
23 2.(4) "Department" means the department of health and welfare environmen-
24 tal quality.
25 3.(5) "Director" means the director of the department of health and wel-
26 fare environmental quality or the director's designee.
27 4. "State" means the state of Idaho.
28 5. "Air contaminant" or "air contamination" means the presence in the
29 outdoor atmosphere of any dust, fume, mist, smoke, vapor, gas or other gaseous
30 fluid or particulate substance differing in composition from or exceeding in
31 concentration the natural components of the atmosphere.
32 6. "Air pollution" means the presence in the outdoor atmosphere of any
33 contaminant or combination thereof in such quantity of such nature and dura-
34 tion and under such conditions as would be injurious to human health or wel-
35 fare, to animal or plant life, or to property, or to interfere unreasonably
36 with the enjoyment of life or property.
37 7.(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.
42 8. "Water pollution" is such alteration of the physical, thermal, chemi-
43 cal, biological or radioactive properties of any waters of the state, or such
44 discharge of any contaminant into the waters of the state as will or is likely
45 to create a nuisance or render such waters harmful or detrimental or injurious
46 to public health, safety or welfare or to domestic, commercial, industrial,
47 recreational, esthetic or other legitimate uses or to livestock, wild animals,
48 birds, fish or other aquatic life.
49 9. "Waters" mean all the accumulations of water, surface and underground,
50 natural and artificial, public and private, or parts thereof which are wholly
51 or partially within, flow through or border upon this state.
52 10. "Solid waste" means garbage, refuse, and other discarded solid mate-
53 rials, including solid waste materials resulting from industrial, commercial,
7
1 and agricultural operations, and from community activities, but does not
2 include solid or dissolved materials in domestic sewage or other significant
3 pollutants in water resources, such as silt, dissolved or suspended solids in
4 industrial waste water effluents, dissolved materials in irrigation return
5 flows or other common water pollutants.
6 11. "Solid waste disposal" means the collection, storage, treatment, uti-
7 lization, processing or final disposal of solid waste.
8 12. "Laboratory" means not only facilities for biological, serological,
9 biophysical, cytological and pathological tests, but also facilities for the
10 chemical or other examination of materials from water, air or other sub-
11 stances.
12 13. "Person" means any individual, association, partnership, firm, joint
13 stock company, trust, estate, political subdivision, public or private corpo-
14 ration, state or federal governmental department, agency or instrumentality,
15 or any other legal entity which is recognized by law as the subject of rights
16 and duties.
17 14. "Public swimming pool" means an artificial structure, and its appur-
18 tenances, which contains water more than two (2) feet deep which is used or
19 intended to be used for swimming or recreational bathing, and which is for the
20 use of any segment of the public pursuant to a general invitation but not an
21 invitation to a specific occasion or occasions.
22 15. "Public water supply" means all mains, pipes and structures through
23 which water is obtained and distributed to the public, including wells and
24 well structures, intakes and cribs, pumping stations, treatment plants, reser-
25 voirs, storage tanks and appurtenances, collectively or severally, actually
26 used or intended for use for the purpose of furnishing water for drinking or
27 general domestic use in incorporated municipalities; or unincorporated commu-
28 nities where ten (10) or more separate premises or households are being served
29 or intended to be served; or any other supply which serves water to the public
30 and which the department of health and welfare declares to have potential
31 health 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.
10 16.(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.
15 17. "Nutrient" means any one (1) of the natural elements including, but
16 not limited to, carbon, hydrogen, oxygen, nitrogen, potassium, phosphorus,
17 magnesium, sulfur, calcium, sodium, iron, manganese, copper, zinc, molybdenum,
18 vanadium, boron, chlorine, cobalt and silicon, that are essential to plant and
19 animal growth.
20 18. "Medical waste combustor" means any device, incinerator, furnace,
21 boiler or burner, and any and all appurtenances thereto, which burns or
22 pyrolyzes medical waste consisting of human or animal tissues, medical cul-
23 tures, human blood or blood products, materials contaminated with human blood
24 or tissues, used or unused surgical wastes, used or unused sharps including
25 hypodermic 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 OF HEALTH AND WELFARE ENVIRONMENTAL QUALITY -- CRE-
40 ATION. -- ENVIRONMENTAL PROTECTION DIVISION -- ADMINISTRATIVE REGIONS. (1)
41 There is created and established in the state government a department of
42 health and welfare environmental 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 organized into an environmental protection
49 division and into in such other administrative and general services divisions
50 or regions as may be necessary in order to efficiently administer the depart-
51 ment. Each division shall be headed by an division administrator who shall be
52 appointed by and serve at the pleasure of the director. with the concurrence
53 of the board.
9
1 (3) The INEEL coordinator-manager, rRegional administrators and assistant
2 division administrators in the environmental protection division shall 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 state
6 environmental, health, and social services by the people of Idaho, the gover-
7 nor is hereby authorized to establish substate administrative regions. In the
8 designation of these regions specific consideration shall be given to the geo-
9 graphic and economic convenience of the citizens included therein. Each
10 substate administrative region shall be headed by a regional deputy who shall
11 be appointed by and serve at the pleasure of the director with the concurrence
12 of the board No 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 department of health and welfare,
35 division of 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 of health and welfare environmental 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 duties of the department of public
48 health, the department of health, the board of health, and the air pollution
49 control commission, are hereby transferred to the director of the department
50 of health and welfare, provided, however, that rulemaking and hearing func-
51 tions relating to environmental protection, public health and licensure and
10
1 certification standards shall be vested in the board of health and welfare
2 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,
8 including the authority to adopt, promulgate, and enforce rules and regula-
9 tions in those circumstances when the authority to adopt, promulgate, and
10 enforce such rules and regulations is not vested in the board of health and
11 welfare, and shall be the successor in law to all contractual obligations
12 entered into by his predecessors in law. All rulemaking proceedings and hear-
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 to personal health, water pollution, air pollution,
19 visual 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 and the maintenance and protection
25 of personal risks to public health related to any of the powers and duties
26 described in this section. Any such regulation or standard rule 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 standards
31 adopted by the board, shall have the general supervision of the promotion and
32 protection of the life, health, mental health and environment of the people of
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 rules and regulations of 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.
45 b. The supervision and administration of laboratories and the supervision
46 and administration of standards of tests for environmental pollution,
47 chemical analyses and communicable diseases. The director may require that
48 laboratories operated by any city, county, institution, person, firm or
49 corporation for health or environmental purposes conform to standards set
50 by the board.
51 c. The supervision and administration of a mental health program, which
52 shall include services for the evaluation, screening, custody and treat-
53 ment of the mentally ill and those persons suffering from a mental defect,
54 or mental defects.
55 d. The enforcement of minimum standards of health, safety and sanitation
11
1 for all public swimming pools within the state.
2 e.(b) The enforcement of standards, rules and regulations, relating to
3 public water supplies and to administer the drinking water loan account
4 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.
14 f. The supervision and administration of the various schools, hospitals
15 and institutions that were the responsibility of the board of health at
16 the time this act went into effect.
17 g. The supervision and administration of services dealing with the prob-
18 lems of alcoholism including, but not limited to, the care and rehabilita-
19 tion of persons suffering from alcoholism.
20 h.(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 tal and health problems pollution. All of the rules, regulations and stan-
24 dards adopted by the board hereunder shall apply to state institutions.
25 i. The supervision and administration of an emergency medical service
26 program including, but not limited to, assisting other governmental agen-
27 cies and local governmental units, in providing first aid emergency medi-
28 cal services and for transportation of the sick and injured.
29 j.(d) The supervision and administration of a system to safeguard air
30 quality and for limiting and controlling the emission of air contaminants.
31 k.(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 of standards rules 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.
40 l.(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 environmental and health problems pollution.
44 m.(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 propose regulations rules 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.
11 n.(h) The enforcement of all laws, rules, regulations, codes and stan-
12 dards relating to environmental protection and health.
13 o. The formulation and adoption of a comprehensive state nutrient manage-
14 ment plan for the surface waters of the state of Idaho in consultation
15 with the appropriate state or federal agencies, local units of government,
16 and with the public involvement as provided for under the administrative
17 procedure act. The director shall recommend by March 1, 1990, to the
18 board for adoption, rules and regulations setting forth procedures for
19 development of the plan, including mechanisms to keep the public informed
20 and encourage public participation in plan development.
21 The plan shall be developed on a hydrologic basin unit basis with a
22 lake system emphasis. The panhandle hydrologic basin plan shall be com-
23 pleted no later than July 1, 1995. The remaining basin plans shall be com-
24 pleted no later than January 1, 1995. Each plan shall identify nutrient
25 sources; the dynamics of nutrient removal, use, and dispersal; and
26 preventative or remedial actions where feasible and necessary to protect
27 the surface waters of the state. The director shall formulate and recom-
28 mend to the board for adoption rules and regulations as necessary to
29 implement the plan. The plan shall be used by the department and other
30 appropriate agencies including soil conservation districts, public health
31 districts and local units of government in developing programs for
32 nutrient management. State and local units of government shall exercise
33 their police powers in compliance with the comprehensive state nutrient
34 management plan of this act. Local nutrient management programs adopted by
35 any local unit of government prior to the completion of the state compre-
36 hensive nutrient management plan or a hydrologic basin plan shall be con-
37 sistent with the criteria for inclusion in the comprehensive state nutri-
38 ent management plan as enumerated in this subsection, as evidenced by
39 findings of fact by the local units of government and confirmed by the
40 division of environmental quality and the local health district board. The
41 director shall recommend by March 1, 1990, to the board for adoption,
42 rules and regulations for procedures to determine consistency.
43 p. The formulation of a water quality management plan for Priest lake in
44 conjunction with a planning team from the Priest lake area whose member-
45 ship shall be appointed by the board and consist of a fair representation
46 of the various land managers, and user and interest groups of the lake and
47 its Idaho watershed. The stated goal of the plan shall be to maintain the
48 existing water quality of Priest lake while continuing existing nonpoint
49 source activities in the watershed and providing for project specific best
50 management practices when necessary. The plan shall include comprehensive
51 characterization of lake water quality through completion of a baseline
52 monitoring program to be conducted by the department and shall consider
53 existing economics and nonpoint source activity dependent industries of
54 the Priest lake area. The planning team shall conduct public hearings and
55 encourage public participation in the plan development including opportu-
13
1 nity for public review and input. Technical assistance to the planning
2 team with state nonpoint source management programs in forest practices,
3 road construction and maintenance, agriculture and mining shall be pro-
4 vided by the department. Technical assistance to the planning team on area
5 planning, zoning and sanitary regulations shall be provided by the clean
6 lakes council. The plan shall be submitted to the board for its approval
7 at the end of a three (3) year plan development period. Upon review and
8 acceptance by the board, the plan shall be submitted to the legislature
9 for amendment, adoption or rejection. If adopted by the legislature, the
10 plan shall be enacted by passage of a statute at the regular legislative
11 session when it receives the plan and shall have the force and effect of
12 law. Existing forest practices, agricultural and mining nonpoint source
13 management programs are considered to be adequate to protect water quality
14 during the plan development period.
15 q.(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 therapeutic effect 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 such rules and regulations policies 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 veterans
10 homes, state hospital north, state hospital south, and Idaho state school
11 and hospital shall 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.
14 2. All of the executive and administrative duties, powers and functions
15 transferred to the administrator of the department of environmental and commu-
16 nity services by chapter 87, Laws of 1973, are hereby transferred to the
17 director of the department of health and welfare, who shall be the successor
18 in law to all contractual obligations entered into by his predecessors in law.
19 3.(2) All rights and title to property transferred to and vested in the
20 department of environmental and community services by chapter 87, Laws of
21 1973, are hereby transferred to and vested in the department of health and
22 welfare All 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 is not needful 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.
33 4.(3) All codes, rules, regulations, standards, plans, licenses, permits,
34 and certificates consent 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
37 board of environmental and community services, or the department of environ-
38 mental 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 and
42 certificates duly adopted or issued under the provisions of this act The 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 of health and welfare environmental 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 members may be removed by shall
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. All Two (2)
9 members of the board shall be chosen with due regard to their knowledge
10 and interest in environmental protection and health solid 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,
23 serving on the effective date of this act shall continue in office as members
24 of the board of health and welfare, subject to the provisions of this act.
25 Four (4) members of the board of environmental and community services shall be
26 designated by the governor to serve terms on the board of health and welfare
27 expiring on the first Tuesday following the first Monday of January, 1975. The
28 remaining three (3) members of the board of environmental and community ser-
29 vices shall serve terms on the board of health and welfare expiring on the
30 first Tuesday following the first Monday of January, 1977. Thereafter, all
31 members of the board of health and welfare shall serve four (4) year terms.
32 3. The board annually shall elect a chairman, a vice-chairman vice 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.
40 4.(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.
9 5.(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.
16 6.(5) Any person aggrieved by an action or inaction of the department of
17 health and welfare shall 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.
28 7.(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.
35 8.(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 environment or the health of the state.
42 9.(8) All rule making rulemaking proceedings and hearings of the board
43 shall be governed by the provisions of chapter 52, title 67, Idaho Code.
44 10. All codes, rules and standards heretofore adopted by the department of
45 public health, the board of health, and the air pollution control commission
46 and board of environmental and community services, shall remain in full force
47 and effect until superseded by rules and standards duly adopted by the board
48 or until the same is rejected, amended or modified by the legislature in
49 accordance with the provisions of chapter 52, title 67, Idaho Code.
50 11. All of the powers and duties, rule making and hearing functions trans-
51 ferred to the board of environmental and community services in chapter 87,
52 laws 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 department of health and welfare
20 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 department of health and welfare shall 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 CONTROL ACCOUNT FUND ESTABLISHED. There is
20 hereby created and established in the state treasury a separate account fund
21 to be known as the water pollution control account fund. The account fund
22 shall have paid into it:
23 1. The moneys provided for in section 14-425 63-3638, Idaho Code, that
24 are paid over to the state treasurer shall be deposited to the credit of the
25 water pollution control account fund, and not to the credit of the state gen-
26 eral account fund;
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 CONTROL ACCOUNT FUND -- PURPOSE
33 OF CHAPTER. Moneys in the water pollution control account fund are hereby per-
34 petually appropriated for the following purposes:
35 1. To provide the state's matching share of grants made under the provi-
36 sions of this chapter.
37 2.(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.
40 3. To provide for the operations of the water quality programs estab-
41 lished pursuant to this chapter.
42 4. To provide direct grants or contracts for the purpose of providing
43 training for drinking water system and sewage treatment plant operating per-
44 sonnel.
45 5.(2) To provide payments for contracts entered into pursuant to this
46 chapter.
47 6.(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.
50 7.(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 made upon the request of the board or upon 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 potential health environmental 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 per subsection 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-
53 lation, 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 relates to 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 protection or health law 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 of the board or the
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 director or board may 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 director or board shall 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 the board director 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, the board director, 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 the board director. Not more than twenty-four (24) hours after the
36 commencement of such hearing, and without adjournment thereof, the board
37 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 the board director
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
42 it the 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 TRANSFERRED TRANSFER OF EMPLOYEES. UNDER GROUP PLANS
13 UNAFFECTED. The provisions of this act All 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 affect their the rights or privileges of any
17 transferred employee transferred under the public employees retirement 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 with the regulations rules established by the board
30 of health and welfare hereunder.
31 (b) The board director shall develop and recommend to the board for adop-
32 tion through rulemaking, criteria through rule making by November 15,
33 1993, to determine insignificant activities and such sources or modifica-
34 tion with emissions at or below the deminimis de 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 or regulations adopted by the
43 board rules 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
18 prepare for board approval issue compliance schedule orders to any person who
19 is the source of any health hazard, air contaminant, water pollution, or solid
20 waste or noise for 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 directed in the selection of the
29 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 of such the 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 order when affirmed by the
39 board shall become a final order be 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 the department of health and welfare director 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 the department director. 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 the depart-
12 ment of health and welfare director. If construction does not deviate from the
13 original plans previously submitted for approval, a statement to that effect
14 shall be filed with the department director.
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 the depart-
21 ment director 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, the department director 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 the department of health and welfare director of
33 the department of environmental quality before construction may begin and all
34 construction shall be in compliance therewith. The department director 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 the department director 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 the department director that the construction has been completed and is in
48 substantial compliance with the plans and specifications as submitted and
49 approved. The department director 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 PERMITTING ACCOUNT FUND. (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 the division of environmental quality of the department of health
5 and welfare environmental quality and shall be paid into the Idaho air quality
6 permitting account fund 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 permitting account fund 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 the division department
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 permitting account fund.
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 of health and
21 welfare environmental quality is hereby authorized to charge and collect rea-
22 sonable fees, established by standards formulated by the board of health and
23 welfare director and approved by the board through rulemaking, for any service
24 rendered by the department. The fee may be determined by a sliding scale
25 according to income or available assets. The department is hereby authorized
26 to require information concerning the total income and assets of each person
27 receiving 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 OF HEALTH AND WELFARE ENVIRONMENTAL QUALITY PRIMARY
32 ADMINISTRATIVE AGENCY -- AGENCY RESPONSIBILITIES. (1.) The department of
33 health and welfare environmental 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 of health and welfare environmental 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 of health and welfare environmental quality, the department of
44 water resources and the department of agriculture in coordination with the
45 ground water quality council shall:
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
1 b. Prepare an annual report during the life of the council detailing the
2 number and concentration of contaminants detected in ground water by loca-
3 tion.
4 c.(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.
7 d.(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 with
11 the 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.) The board of health and welfare director of the department of envi-
15 ronmental quality may adopt, by rule, after consultation with the ground water
16 quality council develop 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. The board, after consulta-
20 tion with the ground water quality council, may adopt by rule such director
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 of health and welfare environmental 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 water
50 quality council created in section 39-122, Idaho Code.
51 5. "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 rules and regulations to 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 rules or regu-
19 lations promulgated thereunder. All state agencies, cities, counties and other
20 political subdivisions shall cooperate with the ground water quality council,
21 the department of health and welfare environmental 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 with
42 local governments, with emphasis on smaller cities, of cumulative public
43 health and environmental mandates imposed by the United States environmental
44 protection agency. The department shall provide a written and oral report to
45 the 1995 regular session of the legislature describing methods and results of
46 the study, along with recommendations as to how cumulative public health and
47 environmental mandates may be implemented so as to most efficiently and prac-
48 tically protect human health and the environment within the capabilities of
49 local government. The emphasis of the study shall be to investigate and report
50 on:
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 for
30
1 meeting the requirements of federal mandates most efficiently taking into
2 account 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 board and of 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 rules and regulations
11 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 rules and regulations promulgated
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 to wilfully willfully 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 rules and regulations promulgated 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 rules and regulations promulgated 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 rules and regula-
45 tions promulgated by the district board of health.
46 (3) A violator of any law, or rule or regulation within the jurisdiction
47 of the district shall be liable in an amount not in excess of the limits pre-
48 scribed in subsection 5. of section 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 The state board department of health and welfare, created in section 39-107,
11 Idaho 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 - 2000
Moved 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 CONTROL ACCOUNT FUND ESTABLISHED. There is
14 hereby created and established in the state treasury a separate account fund
15 to be known as the water pollution control account fund. The account fund
16 shall have paid into it:
17 1. The moneys provided for in section 14-425 63-3638, Idaho Code, that
18 are paid over to the state treasurer shall be deposited to the credit of the
19 water pollution control account fund, and not to the credit of the state gen-
20 eral account fund;
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 CONTROL ACCOUNT FUND -- PURPOSE
27 OF CHAPTER. Moneys in the water pollution control account fund are hereby per-
28 petually appropriated for the following purposes:
29 1. To provide the state's matching share of grants made under the provi-
30 sions of this chapter.
31 2.(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.
34 3. To provide for the operations of the water quality programs estab-
35 lished pursuant to this chapter.
36 4. To provide direct grants or contracts for the purpose of providing
37 training for drinking water system and sewage treatment plant operating per-
38 sonnel.
39 5.(2) To provide payments for contracts entered into pursuant to this
2
1 chapter.
2 6.(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.
5 7.(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
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