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 OF THE AGRICULTURE, 

ENVIRONMENT & NATURAL RESOURCES BUREAU 

ATTORNEY GENERAL STATEMENT 

FOR FINAL 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) of the 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 of the State of 

Nebraska provide adequate authority to carry out the hazardous waste program set forth in the Program 

Description submitted by the Nebraska Department of Environmental 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 of 40 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. In this regard, the Nebraska Supreme 

Court has held that "The Legislature may lawfully adopt by reference an existing law or regulation of 

another jurisdiction, including the United States." Clemens v. Harvey, 247 Neb. 77 (1994) citing Anderson 

v. Tiemann, 182 Neb. 393 (1967). For purposes of construction and interpretation, this same court has held 

that a rule of an administrative agency is treated like a statute. Utelcom, Inc. v. Egr. 264 Neb. 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, 259 Neb. 479 (2000). Nebraska law does not authorize the adoption offederal 

regulations by reference prospectively. 

Printed wth soy ink on recycled paper 
Seal of Office By: 

By: 

DOUG PETERSON # 18 I 46 

Attorney General 

us tin Lavene #22 I 78 

Assistant Attorney General 

21 15 State Capitol 

Lincoln, NE 68509-8920 

Justin.Lavene@nebraska.gov 

Tel: (402) 471-2682 

Fax: (402) 471-2957 

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