HEALTH AND SAFETY
HAZARDOUS WASTE MANAGEMENT
39-4413. Enforcement procedures. (A) Whenever the director determines that any person is in violation of any provision of this chapter or any permit, standard, regulation, condition, requirement, compliance agreement or order issued or promulgated pursuant to this chapter, one or more of the following actions may be taken:
(1) ADMINISTRATIVE ENFORCEMENT ACTIONS.
(a) Notice. The director may commence an administrative enforcement action by issuing a written notice of violation. The notice of violation shall identify the alleged violation with specificity, shall specify each provision of the act, rule, regulation, permit or order which has been violated, and shall state the amount of civil penalty claimed for each violation. The notice of violation shall inform the person to whom it is directed of an opportunity to confer with the director or the director’s designee in a compliance conference concerning the alleged violation. A written response may be required within fifteen (15) days of receipt of the notice of violation by the person to whom it is directed.
(b) Scheduling Compliance Conference. If a recipient of a notice of violation contacts the department within fifteen (15) days of the receipt of notice, the recipient shall be entitled to a compliance conference. The conference shall be held within twenty (20) days of the date of receipt of notice, unless a later date is agreed upon between the parties. If a compliance conference is not requested, the director may proceed with a civil enforcement action as provided in subsection (3) of this section.
(c) Compliance Conference. The compliance conference shall provide an opportunity for the recipient of a notice of violation to explain the circumstances of the alleged violation and, where appropriate, to present a proposal for remedying damage caused by the alleged violation and for assuring future compliance. If the recipient and the director agree on a plan to remedy damage caused by the alleged violation and to assure future compliance, they may enter into a consent order formalizing their agreement. The consent order may include a provision for payment of any agreed civil penalty.
(d) Effect of Consent Order. A consent order shall be effective immediately upon signing by both parties and shall preclude any civil enforcement action for the same alleged violation. If a party does not comply with the terms of the consent order, the director may seek and obtain in any appropriate district court specific performance of the consent order and such other relief as authorized in this chapter.
(e) Failure to Reach Agreement on Consent Order. If the parties cannot reach agreement on a consent order within sixty (60) days after the receipt of the notice of violation, or if the recipient does not request a compliance conference pursuant to subsection (A)(1)(b) of this section, the director may commence and prosecute a civil enforcement action in district court, in accordance with subsection (A)(3) of this section.
(2) PERMIT SUSPENSION OR REVOCATION PROCEEDINGS.
(a) Grounds. The director may revoke or temporarily suspend the permit of any hazardous waste facility or site pursuant to the grounds provided in subsection (6) of section 39-4409, Idaho Code.
A violation that is shown to have occurred as the result of an unforeseeable act of God despite a permitted party’s reasonable efforts to comply with all applicable legal requirements shall not be grounds for a suspension or revocation.
(b) Notice of Hearing. The director shall commence a permit suspension or revocation action by giving a permitted party a written notice of intent to suspend or revoke. The notice shall inform the permitted party of facts or conduct which warrant suspension or revocation of the permit. The notice, hearing, and record requirements for contested cases contained in the Idaho administrative procedure act, chapter 52, title 67, Idaho Code, and subsection (A)(2)(c) of this section shall apply to proceedings initiated under this subsection. Revocation or suspension of a permit shall become final fifteen (15) days after delivery of the notice of intent to revoke or suspend unless the permitted party requests a hearing.
(c) Administrative Hearing Provisions.
(i) Upon a timely request by a permit holder for a hearing to review the director’s action under subsection (A)(2)(b) of this section, the director shall promptly conduct a hearing open to the public. The contested case provisions of the Idaho administrative procedure act shall apply to all hearings conducted under this subsection.
(ii) The director shall have the authority to request from the district court in and for Ada county or any other appropriate district court the issuance of an order in the nature of a subpoena compelling the attendance and testimony of witnesses and the production before the director of papers, books, drawings, documents, test results, and other evidence relevant to a permit suspension or revocation investigation or adjudication.
(iii) After the hearing, the director shall issue a written opinion setting forth findings of fact, conclusions of law and an order. An aggrieved person subject to the director’s order may seek its review as a final order in a district court as provided by the Idaho administrative procedure act. District court review of the director’s decision shall be limited to the record developed before the director.
(3) CIVIL ENFORCEMENT ACTION. The attorney general may commence and prosecute in district court a civil enforcement action. Civil enforcement actions shall be commenced and prosecuted in the district court in and for the county in which the alleged violation occurred, and may be brought against any person who is alleged to have violated any provision of this chapter or any rule, regulation, permit, condition, requirement, consent order, or order which has become effective pursuant to this chapter. Such action may be brought to compel compliance with any provision of this chapter or with any rule, regulation, permit or order promulgated hereunder, and for any relief or remedies authorized in this chapter. The director shall not be required to initiate or prosecute an administrative action before the attorney general may commence and prosecute a civil enforcement action. In addition, the attorney general may delegate this authority regarding civil enforcement actions to the prosecuting attorney of the county where a civil enforcement action may arise.
(B) ACTIONS AGAINST GUARANTORS. If the owner or operator is in bankruptcy, reorganization or other arrangement pursuant to the federal bankruptcy code, or where jurisdiction cannot be obtained over an owner or operator likely to be solvent at the time of judgment, an action may be brought directly against a guarantor of financial responsibility by the state or any injured party for any claim arising from conduct for which guarantees of financial responsibility have been made. The guarantor may invoke all rights and defenses which would have been available to the owner or operator and all rights and defenses normally available to the guarantor.
(C) LIMITATION OF ACTION FOR ADMINISTRATIVE AND CIVIL COURT PROCEEDINGS BROUGHT UNDER THE PROVISIONS OF THIS CHAPTER. No civil or administrative proceeding may be brought to recover for a violation of this chapter or any permit, standard, regulation, condition, requirement or order issued or promulgated pursuant to this chapter more than two (2) years after the director had knowledge or ought reasonably to have had knowledge of the violation.
[39-4413, added 1983, ch. 154, sec. 1, p. 425; am. 1986, ch. 148, sec. 6, p. 422; am. 1988, ch. 259, sec. 3, p. 501; am. 1989, ch. 38, sec. 1, p. 49.]