STATE OF MINNESOTA



## OFFICE OF THE ATTORNEY GENERAL

TO: 

### Nathan Cooley DATE: 

### May 19, 2010

MPCA

FROM: 

### BEVERLY M. CONERTON

Assistant Attorney General 445 Minnesota St., #900 St. Paul, MN 55101-2127 PHONE: 

### (651) 757-1426

FAX: 

### (651) 297-4139

TTY: 

### (651) 296-1410

SUBJECT: Attorney General Statement - Hazardous Waste Rules



### Enclosed is the signed Attorney General Statement required by EPA Regulations in support of MPCA's application for hazard waste program authorization.

Enclosure

AG: #2640634-v 1

### MINNESOTA ATTORNEY GENERAL STATEMENT FOR FINAL AUTHORIZATION FOR CHANGES TO THE MINNESOTA STATE-ADMINISTERED

FEDERAL HAZARDOUS WASTE PROGRAM

I hereby certify, pursuant to my authority as the chief legal officer of the State of Minnesota 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 U.S.C. § 6901 et seq.), and 40 C.F.R. Part 271, that in my opinion the laws of the State of Minnesota provide adequate authority to carry out the revised Minnesota Pollution Control Agency (MPCA) hazardous waste program as set forth in the Program Description submitted by the MPCA on September 30, 2009 and to meet the requirements of 40 C.F.R. Part 271, subpart A. The statutory authorities for the MPCA to carryout the revised hazardous waste program are documented in the State RCRA Statutory Checklist dated May 13, 2010, which is attached to this Statement as Attachment A. The specific authorities provided are contained in statutes and rules lawfully adopted at the time this Statement is signed and which are now in effect.

The rules for which the State is seeking authorization were published as adopted in the following State Registers. The effective date of each of these sets of rules is five days after the listed date of publication:

18 State Register 1886 (February 22, 1994) 18 State Register 2195 (April 11, 1994) 20 State Register 714 (September 25, 1995) 20 State Register 715 (September 25, 1995) 22 State Register 5 (July 7, 1997) 28 State Register 1482 (May 24, 2004) 29 State Register 947 (February 14, 2005) 30 State Register 43 (July 18, 2005) 31 State Register 1277 (March 19, 2007) 33 State Register 2042 (June 15, 2009)

The official MPCA hazardous waste rules are found in Minnesota Rules chapters 7001 and 7045 (2009).

Some of the adopted Minnesota Rules incorporate federal regulations by reference, including incorporation of future amendments to the incorporated federal regulations. The authority to incorporate materials into Minnesota Rules by reference, including future amendments to the incorporated material, is found in Minnesota Statutes § 14.07, subd. 4 and in Minnesota Statutes §§ 645.001 and 645.31, subd. 2. The Minnesota Supreme Court has held that incorporation of federal requirements, including future amendments to the federal requirements, is permissible if the state rule governs a program that is auxiliary in nature and seeks to achieve uniformity in the implementation of national programs and policies. Minnesota Recipients Alliance v. Noot, 313 N.W.2d 584, 586 (Minn. 1981). Even if the state program is not auxiliary to the federal program, the incorporation of federal regulations into state rules, including future amendments, will be upheld if good reasons exist to coordinate the federal and state requirements, and the state agency will be making the ultimate determination which affects the applicant. Minnesota Energy and Economic Development Authority v. Printy, 351 N.W.2d 319,

### Minnesota Attorney General Statement

September , 2009 Page 2

352 (Minn. 1984). Based on the above-referenced statutes and cases, it is my opinion that the MPCA has adequate authority to incorporate by reference federal regulations as amended.

This Statement supplements my or my predecessors' certifications of the following dates:
July 25, 1984 June 24, 1986 February 2, 1988 November 20, 1989 June 28, 1991 December 3, 1991 April 6, 1992 January 19, 1993 October 22, 1993 November 18, 1993 March 14, 2002 November 6, 2007

In my opinion, the 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.

This Statement does not contain a review or determination of whether the abovereferenced rules for which the MPCA is seeking authorization are consistent with, or at least as stringent as, their federal counterparts.

I am authorized to sign this Statement on behalf of the Minnesota Attorney General pursuant to Minn. Stat. § 8.02.

Steven M. Gunn Deputy Attorney General

AG: #2505938-v 1



### 2

### Statutory Element Part 271 RCRA Cite Minnesota's Statutory Reference Authority
I. DEFINITIONS

Disposal N/A § 1004(3) Minn. Stat. § 116.07, subd. 4; Minn. Stat. §§ 116.06, subd. 8 & 115A.03

Generator N/A Not in RCRA; Minn. Stat. § 116.07, subd. 4
See 40 C.F.R. § 260.10 defn.
Hazardous waste N/A § 1004(5) Minn. Stat. § 116.07, subd. 4; Minn. Stat. § 116.06, subd. 11; Minn. Stat. § 116.36, subd. 4

(PCBs)
Manifest N/A § 1004(12) Minn. Stat. § 116.07, subd. 4

Person N/A § 1004(15) Minn. Stat. § 116.07, subds. 4 & 17 Storage N/A § 1004(33) Minn. Stat. § 116.07, subd. 4 Transport N/A Not in RCRA; Minn. Stat. § 116.07, subd. 4
See 40 C.F.R. § 260.10 definition of "transportation"

Treatment N/A § 

### 1004(34) Minn. Stat. § 116.07, subd. 4 Treatment, Storage or Disposal facility N/A Not in RCRA; Minn. Stat. § 116.07, subd. 4
See 40 C.F.R. § 260.10 defn. of "facility" Waste (solid) N/A § 1004(27) N/A* 

### *Remarks of the Attorney General/Independent Counsel:

*In Minnesota, solid waste and hazardous waste are separately regulated. Minnesota's definition of solid waste in Minn. Stat. § 116.06, subd. 22 excludes hazardous waste.



### H. HAZARDOUS 

### WASTE IDENTIFICATION 

### AND LISTING

[See 

### 40 C.F.R. § 271.9]
1. Authority to adopt a set of 271.9(a) 

### §§ 3001(a), (b), (d), Minn. Stat. § 116.07, subd. 4

### Statutory Element Part 271 RCRA Cite Minnesota's Statutory Reference Authority characteristics for identifying (e), (i) and 3018(b) hazardous waste and a list of hazardous wastes



### Statutory Element Part 271 RCRA Cite Minnesota's Statutory Reference Authority
2. 

### Delisting (Optional): Authority 271.9(b) § 3001(b) and (f) Minn. Stat. § 116.07, subd. 4 to provide a delisting mechanism with regulations that are equivalent to 40 C.F.R. § 260.20(b) and 260.22 and that meets the requirements of RCRA § 3001(0(1) & (2)



### Remarks of the Attorney General/Independent Counsel:

III. STANDARDS FOR GENERATORS [See 

### 40 C.F.R. § 271.10] Authority to regulate all generators 271.10 §§ 3001, 3002, Minn. Stat. § 116.07, subd. 4 EPA regulates under 40 C.F.R. & 3017 Part 262. 

### Remarks of the Attorney General/Independent Counsel:

IV. STANDARDS FOR TRANSPORTERS [See 

### 40 C.F.R. § 271.11] Authority to regulate all transporters 271.11 § 3001 Minn. Stat. § 116.07, subd. 4 EPA regulates under 40 C.F.R. § 3003 Part 263 

### Remarks of the Attorney General/Independent Counsel:

V. STANDARDS FOR HAZARDOUS WASTE STORAGE, TREATMENT, AND DISPOSAL FACILITIES [See 

### 40 C.F.R. § 271.12]

1. Authority to regulate all owners 271.12 § 3004 Minn. Stat. § 116.07, subds. 4, and operators of hazardous 4a, 4b, and 4f; waste management facilities that EPA regulates under 40 C.F.R. Minn. Stat. §§ 115.065 and Parts 264 and 266 and to adopt 115.067; technical standards, requirements, and prohibitions. Minn. Stat. § 116.38 (PCBs)*

Minn. Stat. § 116.93 (lamp recycling facilities)**