### STATE OF NEBRASKA 

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DOUGLASJ.PETERSON ATTORNEY GENERAL 2115 STATE CAPITOL BUILDING LINCOLN, NE 68509-8920 (402) 471-2682 TDD (402) 471-2682 FAX (402) 471-3297 or (402) 471-4725

JUSTIN D. LAVENE CHIEF OFTHEAGRICULTURE, ENVIRONMENT & NATURALRESOURCESBUREAU ATTORNEY G ENERAL STATEMENT FORFINAL AUTHORIZATION FOR CHANGES TO 

### THE FEDERAL HAZARDOUS WASTE PROGRAM I hereby certifY, pursuant to my authority as Assistant Attorney General and in accordance with Section 3006(b) ofthe Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984 (42 USC 6901 et

**~-),and** 40 CFR 271 , that in my opinion the laws ofthe State of Nebraska provide adequate authority to carry out the hazardous waste program set forth in the Program Description submitted by the NebraskaDepartment ofEnvironmental Quality submitted with this Attorney General's Statement and to meet the requirements of 40 C.P.R. Part 271, Subpart A. The specific authorities provided are contained in statutes or regulations lawfully adopted at the time this Statement is signed and which are in effect now. The statutory and regulatory authorities for the State are documented in the State RCRA Statutory Checklist, attached to this statement. In my opinion, statutes relied on in previously approved authorization applications have not been amended, modified or revised by statute or judicial decision in a way that diminishes and interferes with the authority to carry out the previously authorized hazardous waste program to meet the requirements of40 C.F
.R. Part 271, Subpart A. The provisions for which the State is seeking authorization are documented in the attached Revision Checklists. Differences between the State's provisions and the Federal provisions are noted on the Revision Checklists
. The official State regulations may be found in Nebraska Administrative Code, Title 128- Nebraska Hazardous Waste Regulations, effective July 6, 2016. This certification supplements my predecessors certification(s) November 30, 1984 (Base Program); April12, 1988 (First Revision); March 19, 1993 (Second Revision); June 5, 2002 (Third Revision), March 30, 2004 (Fourth Revision) and April 22, 2008 (Fifth Revision). The adoption of federal regulations by reference is not an uncommon regulatory practice in Nebraska. Under Neb. Rev. Stat. §81

- 1505(13)(a), which provides specifically that the regulations "shall in all respects comply with
... the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq.," this practice would seem to have implicit legislative approval. Inthis regard, the Nebraska Supreme Court has held that "The Legislature may lawfully adopt by reference an existing law or regulation of anotherjurisdiction, including the United States." Clemens v. Harvey, 247Neb
. 77 (1994) citingAnderson v. Tiemann, 182Neb
. 393 (1967). Forpurposes ofconstruction and interpretation, this same courthas held that a rule ofan administrative agency is treated like a statute. Utelcom, Inc. v. Egr. 264Neb. I 004 (2002). Furthermore, in an opinion interpreting Nebraska Discovery Rules, the court has stated it "will look to federal decisions interpreting corresponding federal rules for guidance in construing similar Nebraska rules." Gernstein v. Lake, 259Neb. 479 (2000). Nebraska law does not authorize the adoption offederal regulations by reference prospectively.

Printed wth soy ink on rec ycledpaperSeal ofOffice By:

By: DOUG PETERSON# 18 I46 Attorney General

ustin Lavene #22I78 A

ssistant Attorney General 21 15 State Capitol Lincoln, NE 68509-8920 Justin.Lavene@nebraska.gov Tel : (402) 471-2682 Fax: (402) 471-2957**Dat~**