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. HAZARDOUSWASTE IDENTIFICATIONAND 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)**