Idaho State Statutes - Idaho Attorney Directory

INVESTIGATION -- INSPECTION -- RIGHT OF ENTRY -- VIOLATION --
ENFORCEMENT -- PENALTY -- INJUNCTIONS. (1) The director shall cause
investigations to be made upon receipt of information concerning an alleged
violation of this act or of any rule, permit or order promulgated thereunder,
and may cause to be made such other investigations as the director shall deem
advisable.
(2) For the purpose of enforcing any provision of this chapter or any
rule authorized in this chapter, the director or the director's designee shall
have the authority to:
(a) Conduct a program of continuing surveillance and of regular or
periodic inspection of actual or potential environmental hazards, air
contamination sources, water pollution sources, and of solid waste
disposal sites;
(b) Enter at all reasonable times upon any private or public property,
upon presentation of appropriate credentials, for the purpose of
inspecting or investigating to ascertain possible violations of this act
or of rules, permits or orders adopted and promulgated by the director or
the board;
(c) All inspections and investigations conducted under the authority of
this chapter shall be performed in conformity with the prohibitions
against unreasonable searches and seizures contained in the fourth
amendment to the constitution of the United States and section 17, article
I, of the constitution of the state of Idaho. The state shall not, under
the authority granted by this chapter, conduct warrantless searches of
private property in the absence of either consent from the property owner
or occupier or exigent circumstances such as a public health or
environmental emergency;
(d) Any district court in and for the county in which the subject
property is located is authorized to issue a search warrant to the
director upon a showing of (i) probable cause to suspect a violation, or
(ii) the existence of a reasonable program of inspection. Any search
warrant issued under the authority of this chapter shall be limited in
scope to the specific purposes for which it is issued and shall state with
specificity the manner and the scope of the search authorized.
(3) Whenever the director determines that any person is in violation of
any provision of this act or any rule, permit or order issued or promulgated
pursuant to this act, the director may commence either of the following:
(a) Administrative Enforcement Action.
(i) 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.
(ii) Scheduling compliance conference. If a recipient of a notice of
violation contacts the department within fifteen (15) days of the
receipt of the 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 the 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 paragraph (b) of this subsection.
(iii) 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 assuring future compliance.
(iv) Consent order. 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 providing
for payment of any agreed civil penalty.
(v) 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.
(vi) Failure to reach 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 as per paragraph (a)(ii) of this section, the
director may commence and prosecute a civil enforcement action in
district court, in accordance with subsection (b) of this section.
(b) Civil enforcement action. The director may initiate a civil
enforcement action through the attorney general as provided in section
39-109, Idaho Code. 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 act or any rule, permit or
order which has become effective pursuant to this act. Such action may be
brought to compel compliance with any provision of this act or with any
rule, permit or order promulgated hereunder and for any relief or remedies
authorized in this act. The director shall not be required to initiate or
prosecute an administrative action before initiating a civil enforcement
action.
(4) No civil or administrative proceeding may be brought to recover for a
violation of any provision of this chapter or a violation of any rule, permit
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.
(5) Monetary penalties.
(a) Any person determined in a civil enforcement action to have violated
any provision of this act or any rule, permit or order promulgated
pursuant to this act shall be liable for a civil penalty not to exceed ten
thousand dollars ($10,000) per violation or one thousand dollars ($1,000)
for each day of a continuing violation, whichever is greater or ten
thousand dollars ($10,000) for each separate air violation and day of
continuing air violation. The method of recovery of said penalty shall be
by a civil enforcement action in the district court in and for the county
where the violation occurred. All civil penalties collected under this act
shall be paid into the general fund of the state. Parties to an
administrative enforcement action may agree to a civil penalty as provided
in this subsection.
(b) The imposition or computation of monetary penalties may take into
account the seriousness of the violation, good faith efforts to comply
with the law, and an enforceable commitment by the person against whom the
penalty is directed to implement a supplemental environmental project. For
purposes of this section, "supplemental environmental project" means a
project which the person is not otherwise required to perform and which
prevents pollution, reduces the amount of pollutants reaching the
environment, contributes to public awareness of environmental matters, or
enhances the quality of the environment. In evaluating a particular
supplemental environmental project proposal, preference may be given to
those projects with an environmental benefit which relate to the violation
or the objectives of the underlying statute which was violated or which
enhances the quality of the environment in the general geographic location
where the violation occurred.
(6) In addition to such civil penalties, any person who has been
determined to have violated the provisions of this act or the rules, permits
or orders promulgated thereunder, shall be liable for any expense incurred by
the state in enforcing the act, or in enforcing or terminating any nuisance,
source of environmental degradation, cause of sickness, or health hazard.
(7) No action taken pursuant to the provisions of this act or of any
other environmental protection law shall relieve any person from any civil
action and damages that may exist for injury or damage resulting from any
violation of this act or of the rules, permits and orders promulgated
thereunder.
(8) In addition to, and notwithstanding other provisions of this act, in
circumstances of emergency creating conditions of imminent and substantial
danger to the public health or environment, the prosecuting attorney or the
attorney general may institute a civil action for an immediate injunction to
halt any discharge, emission or other activity in violation of provisions of
this act or rules, permits and orders promulgated thereunder. In such action
the court may issue an ex parte restraining order.

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