                     Nebraska Environmental Protection Act
                                       
81-1501. Department; declaration of legislative purpose.
   Whereas the water, land, and air of this state are among its most precious resources and the pollution thereof becomes a menace to the health and welfare of each person, and the public in general, in this state and whereas pollution of these resources in this state is likewise a concern in adjoining states, the public policy of this state is hereby declared to be:
   (1) To conserve the water in this state and to protect and improve the quality of water for human consumption, wildlife, fish and other aquatic life, industry, recreation, and other productive, beneficial uses;
   (2) To achieve and maintain such a reasonable degree of purity of the natural atmosphere of this state that human beings and all other animals and plants which are indigenous to this state will flourish in approximately the same balance as they have in recent history and to adopt and promulgate laws, rules, and regulations and enforce uniformly the same in such a manner as to give meaningful recognition to the protection of each element of the environment, air, water, and land;
   (3) To cooperate with other states and the federal government to accomplish the objectives set forth in the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act; and
   (4) To protect human health through environmental enforcement.
Source:Laws 1971, LB 939, § 1; Laws 1987, LB 152, § 1; Laws 1992, LB 1257, § 75; Laws 1994, LB 570, § 4; Laws 1998, LB 1209, § 17.

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.

Annotations
      The Environmental Protection Act does not preempt the field of pollution control such that municipalities cannot enact ordinances on the subject of pollution control. State ex rel. Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003).
      
      Environmental Protection Act does not divest district courts of subject matter jurisdiction to enjoin proposed solid waste disposal operations alleged to be in violation of county ordinances. Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981).
      
      Even in an industrial or rural area, one cannot conduct a business in such a manner as to materially prejudice a neighbor, but before enjoining it perpetually, a court of equity will usually allow the owner to correct or eliminate the cause of the grievance. Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976).
      


81-1502. Terms, defined.
   For purposes of the Environmental Protection Act, unless the context otherwise requires:
   (1) Air contaminant or air contamination shall mean the presence in the outdoor atmosphere of any dust, fume, mist, smoke, vapor, gas, other gaseous fluid, or particulate substance differing in composition from or exceeding in concentration the natural components of the atmosphere;
   (2) Air pollution shall mean the presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration as are or may tend to be injurious to human, plant, or animal life, property, or the conduct of business;
   (3) Chairperson shall mean the chairperson of the Environmental Quality Council and council shall mean the Environmental Quality Council;
   (4) Complaint shall mean any charge, however informal, to or by the council, that any person or agency, private or public, is polluting the air, land, or water or is violating the Environmental Protection Act or any rule or regulation of the department in respect thereof;
   (5) Control and controlling shall include prohibition and prohibiting as related to air, land, or water pollution;
   (6) Department shall mean the Department of Environmental Quality, which department is hereby created;
   (7) Director shall mean the Director of Environmental Quality, which position is hereby established;
   (8) Disposal system shall mean a system for disposing of wastes, including hazardous wastes, either by surface or underground methods, and includes sewerage systems and treatment works, disposal wells and fields, and other systems;
   (9) Emissions shall mean releases or discharges into the outdoor atmosphere of any air contaminant or combination thereof;
   (10) Person shall mean any: Individual; partnership; limited liability company; association; public or private corporation; trustee; receiver; assignee; agent; municipality or other governmental subdivision; public agency; other legal entity; or any officer or governing or managing body of any public or private corporation, municipality, governmental subdivision, public agency, or other legal entity;
   (11) Rule or regulation shall mean any rule or regulation of the department;
   (12) Sewerage system shall mean pipelines, conduits, pumping stations, force mains, and all other constructions, devices, appurtenances, and facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal;
   (13) Treatment works shall mean any plant or other works used for the purpose of treating, stabilizing, or holding wastes;
   (14) Wastes shall mean sewage, industrial waste, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any air, land, or waters of the state;
   (15) Refuse shall mean putrescible and nonputrescible solid wastes, except body wastes, and includes garbage, rubbish, ashes, incinerator ash, incinerator residue, street cleanings, and solid market and industrial wastes;
   (16) Garbage shall mean rejected food wastes, including waste accumulation of animal, fruit, or vegetable matter used or intended for food or that attend the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit, or vegetables, and dead animals rejected by rendering plants;
   (17) Rubbish shall mean nonputrescible solid wastes, excluding ashes, consisting of both combustible and noncombustible wastes, such as paper, cardboard, tin cans, yard clippings, wood, glass, bedding, crockery, or litter of any kind that will be a detriment to the public health and safety;
   (18) Junk shall mean old scrap, copper, brass, iron, steel, rope, rags, batteries, paper, trash, rubber debris, waste, dismantled or wrecked automobiles, or parts thereof, and other old or scrap ferrous or nonferrous material;
   (19) Land pollution shall mean the presence upon or within the land resources of the state of one or more contaminants or combinations of contaminants, including, but not limited to, refuse, garbage, rubbish, or junk, in such quantities and of such quality as will or are likely to (a) create a nuisance, (b) be harmful, detrimental, or injurious to public health, safety, or welfare, (c) be injurious to plant and animal life and property, or (d) be detrimental to the economic and social development, the scenic beauty, or the enjoyment of the natural attractions of the state;
   (20) Water pollution shall mean the manmade or man-induced alteration of the chemical, physical, biological, or radiological integrity of water;
   (21) Waters of the state shall mean all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, wetlands, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface or underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the state;
   (22) Point source shall mean any discernible confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or other floating craft from which pollutants are or may be discharged;
   (23) Effluent limitation shall mean any restriction, including a schedule of compliance, established by the council on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into waters of the state;
   (24) Schedule of compliance shall mean a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard;
   (25) Hazardous waste shall mean a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness or (b) pose a substantial present or potential hazard to human or animal health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed;
   (26) Solid waste shall mean any garbage, refuse, or sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, and mining operations and from community activities. Solid waste shall not include slag, a product that is a result of the steel manufacturing process and is managed as an item of value in a controlled manner and not as a discarded material; solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.; or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.;
   (27) Storage, when used in connection with hazardous waste, shall mean the containment of hazardous waste, either on a temporary basis or for a period of years, in such manner as not to constitute disposal of such hazardous waste;
   (28) Manifest shall mean the form used for identifying the quantity, composition, origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage;
   (29) Processing shall mean to treat, detoxify, neutralize, incinerate, biodegrade, or otherwise process a hazardous waste to remove such waste's harmful properties or characteristics for disposal in accordance with regulations established by the council;
   (30) Well shall mean a bored, drilled, or driven shaft or a dug hole, the depth of which is greater than the largest surface dimension of such shaft or hole;
   (31) Injection well shall mean a well into which fluids are injected;
   (32) Fluid shall mean a material or substance which flows or moves whether in a semisolid, liquid, sludge, gas, or other form or state;
   (33) Mineral production well shall mean a well drilled to promote extraction of mineral resources or energy, including, but not limited to, a well designed for (a) mining of sulfur by the Frasch process, (b) solution mining of sodium chloride, potash, phosphate, copper, uranium, or any other mineral which can be mined by this process, (c) in situ combustion of coal, tar sands, oil shale, or any other fossil fuel, or (d) recovery of geothermal energy for the production of electric power. Mineral production well shall not include any well designed for conventional oil or gas production, for use of fluids to promote enhanced recovery of oil or natural gas, or for injection of hydrocarbons for storage purposes;
   (34) Mineral exploration hole shall mean a hole bored, drilled, driven, or dug in the act of exploring for a mineral other than oil and gas;
   (35) Solution mining shall mean the use of an injection well and fluids to promote the extraction of mineral resources;
   (36) Uranium shall mean tri-uranium oct-oxide;
   (37) Solid waste management facility shall mean a facility as defined in section 13-2010; and
   (38) Livestock waste control facility shall have the same meaning as in section 54-2417.
Source:Laws 1971, LB 939, § 2; Laws 1972, LB 1435, § 1; Laws 1973, LB 538, § 1; Laws 1980, LB 853, § 1; Laws 1981, LB 216, § 2; Laws 1983, LB 356, § 2; Laws 1984, LB 742, § 1; Laws 1984, LB 1078, § 1; Laws 1986, LB 1008, § 1; Laws 1992, LB 1257, § 76; Laws 1993, LB 121, § 538; Laws 1994, LB 570, § 5; Laws 1998, LB 1209, § 18; Laws 2004, LB 916, § 25; Laws 2013, LB203, § 1.



81-1503. Environmental Quality Council; membership; appointment; compensation; Director of Environmental Quality; appointment; oath; duties.
   (1)(a) The Environmental Quality Council is hereby created.
   (b) Until April 28, 2005, the council shall consist of sixteen members to be appointed by the Governor with the advice and consent of the Legislature as follows:
   (i) One representative of the food products manufacturing industry;
   (ii) One representative of conservation;
   (iii) One representative of the agricultural processing industry;
   (iv) One representative of the automotive or petroleum industry;
   (v) One representative of the chemical industry;
   (vi) One representative of heavy industry;
   (vii) One representative of the power generating industry;
   (viii) One representative of agriculture actively engaged in crop production;
   (ix) One representative of labor;
   (x) One professional engineer experienced in control of air and water pollution and solid wastes;
   (xi) One physician knowledgeable in the health aspects of air, water, and land pollution;
   (xii) One representative from county government;
   (xiii) Two representatives from municipal government, one of whom shall represent cities other than those of the primary or metropolitan class;
   (xiv) One representative of the livestock industry; and
   (xv) One representative of the public at large.
   (c) On and after April 28, 2005, the council shall consist of seventeen members to be appointed by the Governor with the advice and consent of the Legislature as follows:
   (i) One representative of the food products manufacturing industry;
   (ii) One representative of conservation;
   (iii) One representative of the agricultural processing industry;
   (iv) One representative of the automotive or petroleum industry;
   (v) One representative of the chemical industry;
   (vi) One representative of heavy industry;
   (vii) One representative of the power generating industry;
   (viii) One representative of agriculture actively engaged in crop production;
   (ix) One representative of labor;
   (x) One professional engineer experienced in control of air and water pollution and solid wastes;
   (xi) One physician knowledgeable in the health aspects of air, water, and land pollution;
   (xii) One representative from county government;
   (xiii) Two representatives from municipal government, one of whom shall represent cities other than those of the primary or metropolitan class;
   (xiv) One representative of the livestock industry;
   (xv) One representative of minority populations; and
   (xvi) One biologist.
   (d)(i) Except as otherwise provided in this subdivision, members of the council serving on April 28, 2005, shall continue to serve on the council as representatives of the entity they were appointed to represent until their current terms of office expire and their successors are appointed and confirmed. The member representing the public at large shall serve until the member representing minority populations is appointed.
   (ii) The Governor shall appoint members pursuant to subdivisions (1)(c)(xv) and (1)(c)(xvi) of this section within ninety days after April 28, 2005.
   (2) Members shall serve for terms of four years. All appointments shall be subject to confirmation by the Legislature when initially made. As the term of an appointee to the council expires, the succeeding appointee shall be a representative of the same segment of the public as the previous appointee. In the case of appointees to vacancies occurring from unexpired terms, each successor shall serve out the term of his or her predecessor. Members whose terms have expired shall continue to serve until their successors have been appointed. All members shall be citizens and residents of the State of Nebraska.
   (3) Members may be removed by the Governor for inefficiency, neglect of duty, or misconduct in office but only after delivering to the member a copy of the charges and affording him or her an opportunity to be publicly heard in person or by counsel, in his or her own defense, upon not less than ten days' notice. Such hearing shall be held before the Governor. When a member is removed, the Governor shall file, in the office of the Secretary of State, a complete statement of all charges made against such member and the findings thereon, together with a complete record of the proceedings.
   (4) The council shall elect from its members a chairperson and a vice-chairperson, who shall hold office at the pleasure of the council. The vice-chairperson shall serve as chairperson in case of the absence or disability of the chairperson. The director shall serve as secretary of the council and shall keep all records of meetings of and actions taken by the council. He or she shall be promptly advised as to such actions by the chairperson.
   (5) The members of the council, while engaged in the performance of their official duties, shall receive a per diem of forty dollars while so serving, including travel time. In addition, members of the council shall receive reimbursement for actual and necessary expenses as provided in sections 81-1174 to 81-1177.
   (6) The council shall hold at least two regular meetings each year, at a time and place fixed by the council and shall keep a record of its proceedings which shall be open to the public for inspection. Special meetings may be called by the chairperson. Such special meetings must be called by him or her upon receipt of a written request signed by two or more members of the council. Written notice of the time and place of all meetings shall be mailed in advance to the office of each member of the council by the secretary. A majority of the members of the council shall constitute a quorum.
   (7) The council shall submit to the Governor a list of names from which he or she shall appoint the Director of Environmental Quality who shall be experienced in air, water, and land pollution control and who may be otherwise an employee of state government. The director shall be responsible for administration of the department and all standards, rules, and regulations adopted pursuant to Chapter 81, article 15, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act. All such standards, rules, and regulations shall be adopted by the council after consideration of the recommendations of the director. All grants to political subdivisions under the control of the department shall be made by the director in accordance with priorities established by the council, unless otherwise directed by statute. A majority of the members of the council shall constitute a quorum for the transaction of business. The affirmative vote of a majority of all members of the council shall be necessary for the adoption of standards, rules, and regulations.
   (8) Before the director enters upon the duties of his or her office, he or she shall take and subscribe to the constitutional oath of office and shall, in addition thereto, swear and affirm that he or she holds no other public office nor any position under any political committee or party, that he or she has not during the two years immediately prior to his or her appointment received a significant portion of his or her income directly or indirectly from permitholders or applicants for a permit under the Environmental Protection Act, and that he or she will not receive such income during his or her term as director, except that such requirements regarding income prior to the term of office shall not apply to employees of any agency of the State of Nebraska or any political subdivision which may be a permitholder under the Environmental Protection Act. Such oath and affirmation shall be filed with the Secretary of State.
Source:Laws 1971, LB 939, § 3; Laws 1972, LB 1435, § 2; Laws 1974, LB 1029, § 1; Laws 1979, LB 321, § 2; Laws 1981, LB 204, § 195; Laws 1983, LB 356, § 3; Laws 1992, LB 1257, § 77; Laws 1998, LB 1209, § 19; Laws 2005, LB 351, § 1; Laws 2012, LB760, § 1.

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.

Annotations
      For purposes of subsection (7) of this section, a statutorily required public hearing is the transaction of business. Johnson v. Nebraska Environmental Control Council, 2 Neb. App. 263, 509 N.W.2d 21 (1993).
      
      
81-1504. Department; powers; duties.
   The department shall have and may exercise the following powers and duties:
   (1) To exercise exclusive general supervision of the administration and enforcement of the Environmental Protection Act, the Integrated Solid Waste Management Act, the Livestock Waste Management Act, and all rules and regulations and orders promulgated under such acts;
   (2) To develop comprehensive programs for the prevention, control, and abatement of new or existing pollution of the air, waters, and land of the state;
   (3) To advise and consult, cooperate, and contract with other agencies of the state, the federal government, and other states, with interstate agencies, and with affected groups, political subdivisions, and industries in furtherance of the purposes of the acts;
   (4) To act as the state water pollution, air pollution, and solid waste pollution control agency for all purposes of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., the Clean Air Act, as amended, 42 U.S.C. 7401 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq., and any other federal legislation pertaining to loans or grants for environmental protection and from other sources, public or private, for carrying out any of its functions, which loans and grants shall not be expended for other than the purposes for which provided;
   (5) To encourage, participate in, or conduct studies, investigations, research, and demonstrations relating to air, land, and water pollution and causes and effects, prevention, control, and abatement of such pollution as it may deem advisable and necessary for the discharge of its duties under the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act, using its own staff or private research organizations under contract;
   (6) To collect and disseminate information and conduct educational and training programs relating to air, water, and land pollution and the prevention, control, and abatement of such pollution;
   (7) To issue, modify, or revoke orders (a) prohibiting or abating discharges of wastes into the air, waters, or land of the state and (b) requiring the construction of new disposal systems or any parts thereof or the modification, extension, or adoption of other remedial measures to prevent, control, or abate pollution;
   (8) To administer state grants to political subdivisions for solid waste disposal facilities and for the construction of sewage treatment works and facilities to dispose of water treatment plant wastes;
   (9) To (a) hold such hearings and give notice thereof, (b) issue such subpoenas requiring the attendance of such witnesses and the production of such evidence, (c) administer such oaths, and (d) take such testimony as the director deems necessary, and any of these powers may be exercised on behalf of the director by a hearing officer designated by the director;
   (10) To require submission of plans, specifications, and other data relative to, and to inspect construction of, disposal systems or any part thereof prior to issuance of such permits or approvals as are required by the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act;
   (11) To issue, continue in effect, revoke, modify, or deny permits, under such conditions as the director may prescribe and consistent with the standards, rules, and regulations adopted by the council, (a) to prevent, control, or abate pollution, (b) for the discharge of wastes into the air, land, or waters of the state, and (c) for the installation, modification, or operation of disposal systems or any parts thereof;
   (12) To require proper maintenance and operation of disposal systems;
   (13) To exercise all incidental powers necessary to carry out the purposes of the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act;
   (14) To establish bureaus, divisions, or sections for the control of air pollution, water pollution, mining and land quality, and solid wastes which shall be administered by full-time salaried bureau, division, or section chiefs and to delegate and assign to each such bureau, division, or section and its officers and employees the duties and powers granted to the department for the enforcement of Chapter 81, article 15, the Integrated Solid Waste Management Act, the Livestock Waste Management Act, and the standards, rules, and regulations adopted pursuant thereto;
   (15)(a) To require access to existing and available records relating to (i) emissions or discharges which cause or contribute to air, land, or water pollution or (ii) the monitoring of such emissions or discharges; and
   (b) To require, for purposes of developing or assisting the development of any regulation or enforcing any of the provisions of the Environmental Protection Act which pertain to hazardous waste, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous waste, upon request of any officer, employee, or representative of the department, to furnish information relating to such waste and any permit involved. Such person shall have access at all reasonable times to a copy of all results relating to such waste;
   (16) To obtain such scientific, technical, administrative, and operational services including laboratory facilities, by contract or otherwise, as the director deems necessary;
   (17) To encourage voluntary cooperation by persons and affected groups to achieve the purposes of the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act;
   (18) To encourage local units of government to handle air, land, and water pollution problems within their respective jurisdictions and on a cooperative basis and to provide technical and consultative assistance therefor;
   (19) To consult with any person proposing to construct, install, or otherwise acquire an air, land, or water contaminant source or a device or system for control of such source, upon request of such person, concerning the efficacy of such device or system or concerning the air, land, or water pollution problem which may be related to the source, device, or system. Nothing in any such consultation shall be construed to relieve any person from compliance with the Environmental Protection Act, the Integrated Solid Waste Management Act, the Livestock Waste Management Act, rules and regulations in force pursuant to the acts, or any other provision of law;
   (20) To require all persons engaged or desiring to engage in operations which result or which may result in air, water, or land pollution to secure a permit prior to installation or operation or continued operation;
   (21) To enter and inspect, during reasonable hours, any building or place, except a building designed for and used exclusively for a private residence;
   (22) To receive or initiate complaints of air, water, or land pollution, hold hearings in connection with air, water, or land pollution, and institute legal proceedings in the name of the state for the control or prevention of air, water, or land pollution, and for the recovery of penalties, in accordance with the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act;
   (23) To delegate, by contract with governmental subdivisions which have adopted local air, water, or land pollution control programs approved by the council, the enforcement of state-adopted air, water, or land pollution control regulations within a specified region surrounding the jurisdictional area of the governmental subdivisions. Prosecutions commenced under such contracts shall be conducted by the Attorney General or county attorneys as provided in the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act;
   (24) To conduct tests and take samples of air, water, or land contaminants, fuel, process materials, or any other substance which affects or may affect discharges or emissions of air, water, or land contaminants from any source, giving the owner or operator a receipt for the sample obtained;
   (25) To develop and enforce compliance schedules, under such conditions as the director may prescribe and consistent with the standards, rules, and regulations adopted by the council, to prevent, control, or abate pollution;
   (26) To employ the Governor's Keep Nebraska Beautiful Committee for such special occasions and projects as the department may decide. Reimbursement of the committee shall be made from state and appropriate federal matching funds for each assignment of work by the department as provided in sections 81-1174 to 81-1177;
   (27) To provide, to the extent determined by the council to be necessary and practicable, for areawide, selective, and periodic inspection and testing of motor vehicles to secure compliance with applicable exhaust emission standards for a fee not to exceed five dollars to offset the cost of inspection;
   (28) To enforce, when it is not feasible to prescribe or enforce any emission standard for control of air pollutants, the use of a design, equipment, a work practice, an operational standard, or a combination thereof, adequate to protect the public health from such pollutant or pollutants with an ample margin of safety;
   (29) To establish the position of public advocate to be located within the department to assist and educate the public on departmental programs and to carry out all duties of the ombudsman as provided in the Clean Air Act, as amended, 42 U.S.C. 7661f;
   (30) Under such conditions as it may prescribe for the review, recommendations, and written approval of the director, to require the submission of such plans, specifications, and other information as it deems necessary to carry out the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act or to carry out the rules and regulations adopted pursuant to the acts. When deemed necessary by the director, the plans and specifications shall be prepared and submitted by a professional engineer licensed to practice in Nebraska;
   (31) To carry out the provisions of the Petroleum Products and Hazardous Substances Storage and Handling Act;
   (32) To consider the risk to human health and safety and to the environment in evaluating and approving plans for remedial action; and
   (33) To evaluate permits proposed to be issued to any political subdivision under the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., as provided in section 81-1517.
Source:Laws 1971, LB 939, § 4; Laws 1972, LB 1435, § 3; Laws 1973, LB 254, § 1; Laws 1974, LB 1029, § 2; Laws 1979, LB 342, § 1; Laws 1980, LB 853, § 2; Laws 1981, LB 204, § 196; Laws 1983, LB 356, § 4; Laws 1984, LB 1078, § 2; Laws 1986, LB 217, § 15; Laws 1992, LB 1257, § 78; Laws 1994, LB 570, § 6; Laws 1996, LB 1226, § 13; Laws 1997, LB 622, § 124; Laws 1998, LB 1209, § 20; Laws 2015, LB413, § 1. 

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.
      Petroleum Products and Hazardous Substances Storage and Handling Act, see section 81-15,117.



81-1504.01. Department of Environmental Quality; reports required; contents.
   The Department of Environmental Quality shall provide the following information to the Governor and to the Clerk of the Legislature by December 1 of each year:
   (1) A report by type of service or aid provided by the use and distribution of federal funds received by the department. The report shall also include user fees, permit fees, license fees, and application fees authorized by the federal Environmental Protection Agency as follows:
   (a) Actual expenditure of each grant or authorized fees for the most recently completed state fiscal year, including state matching funds;
   (b) Current budget and planned use and distribution of each grant and authorized fees for the current state fiscal year, including state matching funds;
   (c) A summary of the projected funding level of each grant and authorized fees and the impact of federal mandates and regulations upon the future use of each grant and authorized fees; and
   (d) Program summaries including statistical summaries when applicable for the most recently completed state fiscal year and program activity goals for the current state fiscal year;
   (2) A summary of regulations of the federal Environmental Protection Agency which the department is required to implement and which do not include federal funding assistance and the possible financial impact to the state and political subdivisions;
   (3) A report by type of service or aid provided by the use and distribution of state general and cash funds, including user fees, permit fees, license fees, and application fees, to carry out activities that are not funded by federal grants as follows:
   (a) Actual expenditure of state funds, by agency sections, for the most recently completed state fiscal year, including a breakdown of expenditures by personal services, operations, travel, capital outlay, and consulting and contractual services;
   (b) Current budget and planned use and distribution of state funds, by agency sections, for the current state fiscal year, including a breakdown of expenditures for personal services, operations, travel, capital outlay, and consulting and contractual services;
   (c) A summary of projected program funding needs based upon the statutory requirements and public demand for services and the department's assessment of anticipated needs statewide; and
   (d) Program summaries including statistical summaries when applicable for the most recently completed state fiscal year and program activity goals for the current state fiscal year;
   (4) A report regarding staff turnover by job class and the department's assessment of its ability to hire and retain qualified staff considering the state's personnel pay plan;
   (5) A report listing the method used by each new or existing licensee, permittee, or other person who is required by the department to establish proof of financial responsibility; and
   (6) A report for the previous state fiscal year relating to the purpose of the Nebraska Litter Reduction and Recycling Act and of funds credited to the Nebraska Litter Reduction and Recycling Fund.
   The reports and summaries submitted to the Clerk of the Legislature shall be submitted electronically.
Source:Laws 1991, LB 528, § 1; Laws 1993, LB 3, § 47; Laws 1993, LB 203, § 1; Laws 1994, LB 1034, § 2; Laws 2003, LB 143, § 9; Laws 2007, LB79, § 1; Laws 2012, LB782, § 201.

Cross References
      Nebraska Litter Reduction and Recycling Act, see section 81-1534.



81-1504.02. Department; establish telephone line.
   The department shall establish a telephone line to provide information on the department's programs and requirements and to report complaints and suspected violations of the various environmental statutes and regulations which the department administers, as well as complaints regarding the department's regulation and enforcement activities. The department may charge a fee for the use of such a telephone line.
Source:Laws 1998, LB 1209, § 29. 



81-1504.03. Grants or loans; restrictions.
   No disbursements from grants or loans administered pursuant to the Environmental Protection Act shall be made for projects related to tire-derived fuel.
Source:Laws 2001, LB 461, § 9. 


81-1505. Council; rules and regulations; standards of air, land, and water quality.
   (1) In order to carry out the purposes of the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act, the council shall adopt and promulgate rules and regulations which shall set standards of air, water, and land quality to be applicable to the air, waters, and land of this state or portions thereof. Such standards of quality shall be such as to protect the public health and welfare. The council shall classify air, water, and land contaminant sources according to levels and types of discharges, emissions, and other characteristics which relate to air, water, and land pollution and may require reporting for any such class or classes. Such classifications and standards made pursuant to this section may be made for application to the state as a whole or to any designated area of the state and shall be made with special reference to effects on health, economic and social factors, and physical effects on property. Such standards and classifications may be amended as determined necessary by the council.
   (2) In adopting the classifications of waters and water quality standards, the primary purpose for such classifications and standards shall be to protect the public health and welfare and the council shall give consideration to:
   (a) The size, depth, surface area, or underground area covered, the volume, direction, and rate of flow, stream gradient, and temperature of the water;
   (b) The character of the area affected by such classification or standards, its peculiar suitability for particular purposes, conserving the value of the area, and encouraging the most appropriate use of lands within such area for domestic, agricultural, industrial, recreational, and aquatic life purposes;
   (c) The uses which have been made, are being made, or are likely to be made, of such waters for agricultural, transportation, domestic, and industrial consumption, for fishing and aquatic culture, for the disposal of sewage, industrial waste, and other wastes, or other uses within this state and, at the discretion of the council, any such uses in another state on interstate waters flowing through or originating in this state;
   (d) The extent of present pollution or contamination of such waters which has already occurred or resulted from past discharges therein; and
   (e) Procedures pursuant to section 401 of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., for certification by the department of activities requiring a federal license or permit which may result in a discharge.
   (3) In adopting effluent limitations or prohibitions, the council shall give consideration to the type, class, or category of discharges and the quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable or other waters of the state, including schedules of compliance, best practicable control technology, and best available control technology.
   (4) In adopting standards of performance, the council shall give consideration to the discharge of pollutants which reflect the greatest degree of effluent reduction which the council determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, when practicable, a standard permitting no discharge of pollutants.
   (5) In adopting toxic pollutant standards and limitations, the council shall give consideration to the combinations of pollutants, the toxicity of the pollutant, its persistence, degradability, the usual or potential presence of the affected organisms in any waters, the importance of the affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms.
   (6) In adopting pretreatment standards, the council shall give consideration to the prohibitions or limitations to noncompatible pollutants, prohibitions against the passage through a publicly owned treatment works of pollutants which would cause interference with or obstruction to the operation of publicly owned treatment works, damage to such works, and the prevention of the discharge of pollutants therefrom which are inadequately treated.
   (7) In adopting treatment standards, the council shall give consideration to providing for processes to which wastewater shall be subjected in a publicly owned wastewater treatment works in order to make such wastewater suitable for subsequent use.
   (8) In adopting regulations pertaining to the disposal of domestic and industrial liquid wastes, the council shall give consideration to the minimum amount of biochemical oxygen demand, suspended solids, or equivalent in the case of industrial wastewaters, which must be removed from the wastewaters and the degree of disinfection necessary to meet water quality standards with respect to construction, installation, change of, alterations in, or additions to any wastewater treatment works or disposal systems, including issuance of permits and proper abandonment, and requirements necessary for proper operation and maintenance thereof.
   (9)(a) The council shall adopt and promulgate rules and regulations for controlling mineral exploration holes and mineral production and injection wells. The rules and regulations shall include standards for the construction, operation, and abandonment of such holes and wells. The standards shall protect the public health and welfare and air, land, water, and subsurface resources so as to control, minimize, and eliminate hazards to humans, animals, and the environment. Consideration shall be given to:
   (i) Area conditions such as suitability of location, geologic formations, topography, industry, agriculture, population density, wildlife, fish and other aquatic life, sites of archeological and historical importance, mineral, land, and water resources, and the existing economic activities of the area including, but not limited to, agriculture, recreation, tourism, and industry;
   (ii) A site-specific evaluation of the geologic and hydrologic suitability of the site and the injection, disposal, and production zones;
   (iii) The quality of the existing ground water, the effects of exemption of the aquifer from any existing water quality standards, and requirements for restoration of the aquifer;
   (iv) Standards for design and use of production facilities, which shall include, but not be limited to, all wells, pumping equipment, surface structures, and associated land required for operation of injection or production wells; and
   (v) Conditions required for closure, abandonment, or restoration of mineral exploration holes, injection and production wells, and production facilities in order to protect the public health and welfare and air, land, water, and subsurface resources.
   (b) The council shall establish fees for regulated activities and facilities and for permits for such activities and facilities. The fees shall be sufficient but shall not exceed the amount necessary to pay the department for the direct and indirect costs of evaluating, processing, and monitoring during and after operation of regulated facilities or performance of regulated activities.
   (c) With respect to mineral production wells, the council shall adopt and promulgate rules and regulations which require restoration of air, land, water, and subsurface resources and require mineral production well permit applications to include a restoration plan for the air, land, water, and subsurface resources affected. Such rules and regulations may provide for issuance of a research and development permit which authorizes construction and operation of a pilot plant by the permittee for the purpose of demonstrating the permittee's ability to inject and restore in a manner which meets the standards required by this subsection and the rules and regulations.
   The rules and regulations adopted and promulgated may also provide for issuance of a commercial permit after a finding by the department that the injection and restoration procedures authorized by the research and development permit have been successful in demonstrating the applicant's ability to inject and restore in a manner which meets the standards required by this subsection and the rules and regulations.
   (d) For the purpose of this subsection, unless the context otherwise requires, restoration shall mean the employment, during and after an activity, of procedures reasonably designed to control, minimize, and eliminate hazards to humans, animals, and the environment, to protect the public health and welfare and air, land, water, and subsurface resources, and to return each resource to a quality of use consistent with the uses for which the resource was suitable prior to the activity.
   (10) In adopting livestock waste control regulations, the council shall consider the discharge of livestock wastes into the waters of the state or onto land not owned by the livestock operator, conditions under which permits for such operations may be issued, including design, location, and proper management of such facilities, protection of ground water from such operations, and revocation, modification, or suspension of such permits for cause and all requirements of the Livestock Waste Management Act.
   (11) In adopting regulations for the issuance of permits under the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., the council shall consider when such permits shall be required and exemptions, application and filing requirements, terms and conditions affecting such permits, notice and public participation, duration and review of such permits, the evaluation provided for under section 81-1517, and monitoring, recording, and reporting under the system.
   (12) The council shall adopt and promulgate rules and regulations for air pollution control which shall include:
   (a) A construction permit program which requires the owner or operator of an air contaminant source to obtain a permit prior to construction. Application fees shall be according to section 81-1505.06;
   (b) An operating permit program consistent with requirements of the Clean Air Act, as amended, 42 U.S.C. 7401 et seq., and an operating permit program for minor sources of air pollution, which programs shall require permits for both new and existing sources;
   (c) Provisions for operating permits to be issued after public notice, to be terminated, modified, or revoked for cause, and to be modified to incorporate new requirements;
   (d) Provisions for applications to be on forms provided by the department and to contain information necessary to make a determination on the appropriateness of issuance or denial. The department shall make a completeness determination in a timely fashion and after such determination shall act on the application within time limits set by the council. Applications for operating permits shall include provisions for certification of compliance by the applicant;
   (e) Requirements for operating permits which may include such conditions as necessary to protect public health and welfare, including, but not limited to (i) monitoring and reporting requirements on all sources subject to the permit, (ii) payment of annual fees sufficient to pay the reasonable direct and indirect costs of developing and administering the air quality permit program, (iii) retention of records, (iv) compliance with all air quality standards, (v) a permit term of no more than five years from date of issuance, (vi) any applicable schedule of compliance leading to compliance with air quality regulations, (vii) site access to the department for inspection of the facility and records, (viii) emission limits or control technology requirements, (ix) periodic compliance certification, and (x) other conditions necessary to carry out the purposes of the Environmental Protection Act. For purposes of this subsection, control technology shall mean a design, equipment, a work practice, an operational standard which may include a requirement for operator training or certification, or any combination thereof;
   (f) Classification of air quality control regions;
   (g) Standards for air quality that may be established based upon protection of public health and welfare, emission limitations established by the United States Environmental Protection Agency, and maximum achievable control technology standards for sources of toxic air pollutants. For purposes of this subdivision, maximum achievable control technology standards shall mean an emission limit or control technology standard which requires the maximum degree of emission reduction that the council, taking into consideration the cost of achieving such emission reduction, any health and environmental impacts not related to air quality, and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which the standard applies through application of measures, processes, methods, systems, or techniques, including, but not limited to, measures which accomplish one or a combination of the following:
   (i) Reduce the volume of or eliminate emissions of the pollutants through process changes, substitution of materials, or other modifications;
   (ii) Enclose systems or processes to eliminate emissions; or
   (iii) Collect, capture, or treat the pollutants when released from a process, stack, storage, or fugitive emission point;
   (h) Restrictions on open burning and fugitive emissions;
   (i) Provisions for issuance of general operating permits, after public notice, for sources with similar operating conditions and for revoking such general authority to specific permittees;
   (j) Provisions for implementation of any emissions trading programs as defined by the department. Such programs shall be consistent with the Clean Air Act, as amended, 42 U.S.C. 7401 et seq., and administered through the operating permit program;
   (k) A provision that operating permits will not be issued if the Environmental Protection Agency objects in a timely manner;
   (l) Provisions for periodic reporting of emissions;
   (m) Limitations on emissions from process operations, fuel-burning equipment, and incinerator emissions and such other restrictions on emissions as are necessary to protect the public health and welfare;
   (n) Time schedules for compliance;
   (o) Requirements for owner or operator testing and monitoring of emissions;
   (p) Control technology requirements when it is not feasible to prescribe or enforce an emission standard; and
   (q) Procedures and definitions necessary to carry out payment of the annual emission fee set in section 81-1505.04.
   (13)(a) In adopting regulations for hazardous waste management, the council shall give consideration to generation of hazardous wastes, labeling practices, containers used, treatment, storage, collection, transportation including a manifest system, processing, resource recovery, and disposal of hazardous wastes. It shall consider the permitting, licensing, design and construction, and development and operational plans for hazardous waste treatment, storage, and disposal facilities, and conditions for licensing or permitting of hazardous waste treatment, storage, and disposal areas. It shall consider modification, suspension, or revocation of such licenses and permits, including requirements for waste analysis, site improvements, fire prevention, safety, security, restricted access, and covering and handling of hazardous liquids and materials. Licenses and permits for hazardous waste, treatment, storage, and disposal facilities shall not be issued until certification by the State Fire Marshal as to fire prevention and fire safety has been received by the department. The council shall further consider the need at treatment, storage, or disposal facilities for required equipment, communications and alarms, personnel training, and contingency plans for any emergencies that might arise and for a coordinator during such emergencies.
   In addition the council shall give consideration to (i) ground water monitoring, (ii) use and management of containers and tanks, (iii) surface impoundments, (iv) waste piles, (v) land treatment, (vi) incinerators, (vii) chemical or biological treatment, (viii) landfills including the surveying thereof, and (ix) special requirements for ignitable, reactive, or incompatible wastes.
   In considering closure and postclosure of hazardous waste treatment, storage, or disposal facilities, the council shall consider regulations that would result in the owner or operator closing his or her facility so as to minimize the need for future maintenance, and to control, minimize, or eliminate, to the extent necessary to protect humans, animals, and the environment, postclosure escape of hazardous waste, hazardous waste constituents, and leachate to the ground water or surface waters, and to control, minimize, or eliminate, to the extent necessary to protect humans, animals, and the environment, waste decomposition to the atmosphere. In considering corrective action for hazardous waste treatment, storage, or disposal facilities, the council shall consider regulations that would require the owner or operator, or any previous owner or operator with actual knowledge of the presence of hazardous waste at the facility, to undertake corrective action or such other response measures necessary to protect human health or the environment for all releases of hazardous waste or hazardous constituents from any treatment, storage, or disposal facility or any solid waste management unit at such facility regardless of the time at which waste was placed in such unit.
   Such regulations adopted pursuant to this subsection shall in all respects comply with the Environmental Protection Act and the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq.
   (b) In adopting regulations for hazardous waste management, the council shall consider, in addition to criteria in subdivision (a) of this subsection, establishing criteria for (i) identifying hazardous waste including extraction procedures, toxicity, persistence, and degradability in nature, potential for accumulation in tissue, flammability or ignitability, corrosiveness, reactivity, and generation of pressure through decomposition, heat, or other means, and other hazardous characteristics, (ii) listing all materials it deems hazardous and which should be subject to regulation, and (iii) locating treatment, storage, or disposal facilities for such wastes. In adopting criteria for flammability and ignitability of wastes pursuant to subdivision (b)(i) of this subsection, no regulation shall be adopted without the approval of the State Fire Marshal.
   (c) In adopting regulations for hazardous waste management, the council shall establish a schedule of fees to be paid to the director by licensees or permittees operating hazardous waste processing facilities or disposal areas on the basis of a monetary value per cubic foot or per pound of the hazardous wastes, sufficient but not exceeding the amount necessary to reimburse the department for the costs of monitoring such facilities or areas during and after operation of such facilities or areas. The licensees may assess a cost against persons using the facilities or areas. The director shall remit any money collected from fees paid to him or her to the State Treasurer who shall credit the entire amount thereof to the General Fund.
   (d) In adopting regulations for solid waste disposal, the council shall consider storage, collection, transportation, processing, resource recovery, and disposal of solid waste, developmental and operational plans for solid waste disposal areas, conditions for permitting of solid waste disposal areas, modification, suspension, or revocation of such permits, regulations of operations of disposal areas, including site improvements, fire prevention, ground water protection, safety and restricted access, handling of liquid and hazardous materials, insect and rodent control, salvage operations, and the methods of disposing of accumulations of junk outside of solid waste disposal areas. Such regulations shall in all respects comply with the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq.
   (14) In adopting regulations governing discharges or emissions of oil and other hazardous materials into the waters, in the air, or upon the land of the state, the council shall consider the requirements of the Integrated Solid Waste Management Act, methods for prevention of such discharges or emissions, and the responsibility of the discharger or emitter for cleanup, toxicity, degradability, and dispersal characteristics of the substance.
   (15) In adopting regulations governing composting and composting sites, the council shall give consideration to:
   (a) Approval of a proposed site by the local governing body, including the zoning authority, if any, prior to issuance of a permit by the department;
   (b) Issuance of permits by the department for such composting operations, with conditions if necessary;
   (c) Submission of construction and operational plans by the applicant for a permit to the department, with approval of such plans before issuance of such permit;
   (d) A term of up to ten years for such permits;
   (e) Renewal of permits if the operation has been in substantial compliance with composting regulations adopted pursuant to this subsection, permit conditions, and operational plans;
   (f) Review by the department of materials to be composted, including chemical analysis when found by the department to be necessary;
   (g) Inspections of such compost sites by the department. Operations out of compliance with composting regulations, permit conditions, or operational plans shall be given a reasonable time for voluntary compliance, and failure to do so within the specified time shall result in a hearing after notice is given, at which time the owner or operator shall appear and show cause why his or her permit should not be revoked;
   (h) Special permits of the department for demonstration projects not to exceed six months;
   (i) Exemptions from permits of the department; and
   (j) The Integrated Solid Waste Management Act.
   (16) Any person operating or responsible for the operation of air, water, or land contaminant sources of any class for which the rules and regulations of the council require reporting shall make reports containing information as may be required by the department concerning quality and quantity of discharges and emissions, location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of discharges and emissions, and such other information as is relevant to air, water, or land pollution and is available.
   (17) Prior to adopting, amending, or repealing standards and classifications of air, water, and land quality and rules and regulations under the Integrated Solid Waste Management Act or the Livestock Waste Management Act, the council shall, after due notice, conduct public hearings thereon. Notice of public hearings shall specify the waters or the area of the state for which standards of air, water, or land are sought to be adopted, amended, or repealed and the time, date, and place of such hearing. Such hearing shall be held in the general area to be affected by such standards. Such notice shall be given in accordance with the Administrative Procedure Act.
   (18) Standards of quality of the air, water, or land of the state and rules and regulations adopted under the Integrated Solid Waste Management Act or the Livestock Waste Management Act or any amendment or repeal of such standards or rules and regulations shall become effective upon adoption by the council and filing in the office of the Secretary of State. In adopting standards of air, water, and land quality or making any amendment thereof, the council shall specify a reasonable time for persons discharging wastes into the air, water, or land of the state to comply with such standards and upon the expiration of any such period of time may revoke or modify any permit previously issued which authorizes the discharge of wastes into the air, water, or land of this state which results in reducing the quality of such air, water, or land below the standards established therefor by the council.
   (19) All standards of quality of air, water, or land and all rules and regulations adopted pursuant to law by the council prior to May 29, 1981, and applicable to specified air, water, or land are hereby approved and adopted as standards of quality of and rules and regulations for such air, water, or land.
   (20) In addition to such standards as are heretofore authorized, the council shall adopt and promulgate rules and regulations to set standards of performance, effluent standards, pretreatment standards, treatment standards, toxic pollutant standards and limitations, effluent limitations, effluent prohibitions, and quantitative limitations or concentrations which shall in all respects conform with and meet the requirements of the National Pollutant Discharge Elimination System in the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.
   (21)(a) The council shall adopt and promulgate rules and regulations requiring all new or renewal permit or license applicants regulated under the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act to establish proof of financial responsibility by providing funds in the event of abandonment, default, or other inability of the permittee or licensee to meet the requirements of its permit or license or other conditions imposed by the department pursuant to the acts. The council may exempt classes of permittees or licensees from the requirements of this subdivision when a finding is made that such exemption will not result in a significant risk to the public health and welfare.
   (b) Proof of financial responsibility shall include any of the following made payable to or held in trust for the benefit of the state and approved by the department:
   (i) A surety bond executed by the applicant and a corporate surety licensed to do business in this state;
   (ii) A deposit of cash, negotiable bonds of the United States or the state, negotiable certificates of deposit, or an irrevocable letter of credit of any bank or other savings institution organized or transacting business in the United States in an amount or which has a market value equal to or greater than the amount of the bonds required for the bonded area under the same terms and conditions upon which surety bonds are deposited;
   (iii) An established escrow account; or
   (iv) A bond of the applicant without separate surety upon a satisfactory demonstration to the director that such applicant has the financial means sufficient to self-bond pursuant to bonding requirements adopted by the council consistent with the purposes of this subdivision.
   (c) The director shall determine the amount of the bond, deposit, or escrow account which shall be reasonable and sufficient so the department may, if the permittee or licensee is unable or unwilling to do so and in the event of forfeiture of the bond or other financial responsibility methods, arrange to rectify any improper management technique committed during the term of the permit or license and assure the performance of duties and responsibilities required by the permit or license pursuant to law, rules, and regulations.
   (d) In determining the amount of the bond or other method of financial responsibility, the director shall consider the requirements of the permit or license or any conditions specified by the department, the probable difficulty of completing the requirements of such permit, license, or conditions due to such factors as topography, geology of the site, and hydrology, and the prior history of environmental activities of the applicant.
   This subsection shall apply to hazardous waste treatment, storage, or disposal facilities which have received interim status.
   (22) The council shall adopt and promulgate rules and regulations no more stringent than the provisions of section 1453 et seq. of the federal Safe Drinking Water Act, as amended, 42 U.S.C. 300j-13 et seq., for public water system source water assessment programs.
   The council may adopt and promulgate rules and regulations to implement a source water petition program no more stringent than section 1454 et seq. of the federal Safe Drinking Water Act, as amended, 42 U.S.C. 300j-14 et seq.
Source:Laws 1971, LB 939, § 5; Laws 1972, LB 1435, § 4; Laws 1973, LB 538, § 2; Laws 1974, LB 1029, § 3; Laws 1979, LB 342, § 2; Laws 1980, LB 853, § 3; Laws 1981, LB 216, § 3; Laws 1983, LB 356, § 5; Laws 1984, LB 1078, § 3; Laws 1986, LB 1008, § 2; Laws 1992, LB 1257, § 79; Laws 1993, LB 623, § 3; Laws 1994, LB 570, § 7; Laws 1994, LB 1031, § 1; Laws 1997, LB 517, § 25; Laws 1998, LB 1209, § 21; Laws 1999, LB 784, § 1; Laws 2001, LB 126, § 1; Laws 2001, LB 667, § 49; Laws 2004, LB 449, § 1; Laws 2006, LB 872, § 3; Laws 2011, LB30, § 1; Laws 2015, LB413, § 2. 

Cross References
      Administrative Procedure Act, see section 84-920.
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.

Annotations
      A city ordinance with a mandatory bond requirement conflicts with subsection (21) of this section, which provides for certain exemptions from the requirement of showing financial responsibility, and is impermissible. State ex rel. Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003).
      
      

81-1505.01. Department of Environmental Quality Cash Fund; created; use; investment.

There is hereby created the Department of Environmental Quality Cash Fund which shall be used to pay the expenses of the department. The department shall remit all fees collected pursuant to subsection (9) of section 81-1505 and section 81-1521.09 to the State Treasurer for credit to the fund. Any fee collected pursuant to section 81-1521.09 shall be used to pay the expenses related to the notice of intent for which the fee was paid. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1983, LB 356, § 8; Laws 1987, LB 114, § 1; Laws 1992, LB 1257, § 80; Laws 1993, LB 3, § 48; Laws 1994, LB 1066, § 112; Laws 1995, LB 429, § 2. 

Cross References Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.



81-1505.02. Mineral exploration holes; rules and regulations.

The council may adopt and promulgate rules and regulations governing mineral exploration holes prior to August 1, 1983, but such rules and regulations shall not be effective until such date.

The council shall adopt and promulgate rules and regulations authorized by the amendments made by Laws 1983, LB 356, to subsection (9) of section 81-1505 within one hundred twenty days of May 26, 1983. All requirements of the Environmental Protection Act shall apply to any permit application regardless of the date of submission, except that the department shall continue to diligently process any application submitted prior to May 26, 1983.

Source:Laws 1983, LB 356, § 9. 



81-1505.03. Small Business Compliance Advisory Panel; created; members; duties; expenses.

   (1) There is hereby created the Small Business Compliance Advisory Panel. The panel shall consist of the following:
   
   (a) Two members who are not owners or representatives of owners of small business stationary sources of air emissions selected by the Governor to represent the general public;
   
   (b) Four members selected by the Legislature who are owners or who represent owners of small business stationary sources of air emissions; and
   
   (c) One member selected by the director.
   
   (2) The panel shall be responsible for all requirements of the Clean Air Act, 42 U.S.C. 7401 et seq., as such act existed on January 1, 2004. Members shall be reimbursed for their actual and necessary expenses as provided in sections 81-1174 to 81-1177. The panel shall conduct its meetings in accordance with the Open Meetings Act and shall submit an annual report to the Governor no later than January 1 of each year. The panel shall receive necessary staff support from the department.

Source:Laws 1992, LB 1257, § 81; Laws 2004, LB 821, § 31. 

Cross References Open Meetings Act, see section 84-1407.



81-1505.04. Annual emission fee; payment; amount; adjustment; allocation of costs; department; duties; report.

   (1)(a) The department shall collect an annual emission fee from major sources of air pollution. Each major source shall pay the emission fee for regulated pollutants in the amount of twenty-five dollars per ton per pollutant or as adjusted pursuant to this section. The fee shall be based upon the amount of emissions of each regulated pollutant as reported or estimated by the source in the previous calendar year, but fees shall not be paid on amounts in excess of four thousand tons per year for any regulated pollutant.
   
   (b) Beginning with calendar year 2001 emissions, fees shall not be paid for a mid-sized electric generation facility on amounts in excess of four hundred tons per year for any regulated pollutant.
   
   (c) A mid-sized electric generation facility owned by a municipality shall continue to be considered a separate mid-sized electric generation facility for purposes of this section even if the facility is subsequently permitted with another general unit larger than one hundred fifteen megawatts under separate ownership. Each facility under separate ownership shall be considered a separate major source for purposes of this section.
   
   (d) For purposes of this section, mid-sized electric generation facility means a facility that:
   
   (i) Uses coal as the primary source of fuel in the facility's largest generation unit;
   
   (ii) Has a name plate generating capacity of between seventy and one hundred fifteen megawatts in the facility's largest generation unit; and
   
   (iii) Is not operating in a political subdivision which has been delegated the authority to enforce the air quality permit program within its jurisdiction.
   
   (2)(a) The emission fee may be increased or decreased annually by the department by the percentage difference between the Consumer Price Index for the most recent year ending before the beginning of such year and the Consumer Price Index for the year 1989 or as required to pay all reasonable direct and indirect costs of developing and administering the air quality permit program. For purposes of this section, Consumer Price Index means the change in the price of goods and services for all urban consumers published by the United States Department of Labor at the close of the twelve-month period ending on August 31 of each year.
   
   (b) For purposes of this section, reasonable direct and indirect costs of developing and administering the air quality permit program, as required under the federal Clean Air Act, as the act existed on May 31, 2001, 42 U.S.C. 7661a through f, include:
   
   (i) Consideration of any associated overhead charges for personnel, equipment, buildings, and vehicles;
   
   (ii) Reviewing and acting on any application for a permit or permit revision;
   
   (iii) Implementing and enforcing the terms of any permit, not including any court costs or other costs associated with any formal enforcement action;
   
   (iv) Emissions and ambient monitoring, including adequate resources to audit and inspect source-operated monitoring programs;
   
   (v) Preparing generally applicable regulations or guidance;
   
   (vi) Modeling, analyses, or demonstrations;
   
   (vii) Preparing inventories and tracking emissions;
   
   (viii) Developing and implementing any emissions trading programs as defined by the department; and
   
   (ix) Providing support to sources under the Small Business Compliance Advisory Panel.
   
   (c) The council shall establish procedures for the method of calculation and payment of the emission fee in a manner consistent with this section and shall establish the definition of or a table listing the pollutants which are regulated pollutants and a definition of major source. Such definitions or listing shall comply with and not be more stringent than the requirements of the federal Clean Air Act, as the act existed on May 31, 2001, 42 U.S.C. 7401 et seq.
   
   (3) On or before January 1 of each year, the department shall submit electronically a report to the Legislature in sufficient detail to document all direct and indirect program costs incurred in the previous fiscal year in carrying out the air quality permit program. The Appropriations Committee of the Legislature shall review such report in its analysis of executive programs in order to verify that revenue generated from emission fees was used solely to offset appropriate and reasonable costs associated with the air quality permit program. The report shall identify costs incurred by the department to administer the permit program for each major source. In addition, the department shall identify costs incurred by primary activity not specific to a major source.
   
   (4) The department shall administer a cost tracking system which shall show costs for each major source and costs for each primary activity that is not specific to a major source. The department shall consult with interested parties regarding identification of primary activities to be tracked by the cost tracking system.
   
Source:Laws 1992, LB 1257, § 82; Laws 1996, LB 634, § 1; Laws 2001, LB 461, § 7; Laws 2005, LB 94, § 1; Laws 2006, LB 872, § 4; Laws 2011, LB156, § 1; Laws 2012, LB782, § 202.


81-1505.05. Clean Air Title V Cash Fund; created; use; investment.
The Clean Air Title V Cash Fund is created. The department shall remit all fees collected pursuant to section 81-1505.04 to the State Treasurer for credit to the fund. Any fee collected pursuant to section 81-1505.04 shall be used solely to pay the reasonable direct and indirect costs required to develop and administer the air quality permit program, including expenses of the Small Business Compliance Advisory Panel. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1995, LB 429, § 1. 

Cross References
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.



81-1505.06. Air quality construction permit; fees; Air Quality Permit Cash Fund; created; use; investment.

   (1) Beginning January 1, 2005, each application for an air quality construction permit required by rules and regulations adopted pursuant to subsection (12) of section 81-1505 shall be accompanied by an application fee. If fees are required under more than one subdivision of this subsection, the application shall be accompanied by the one fee which is the highest of the applicable fees. The application fee shall be based on potential to emit, as defined in such rules and regulations, in accordance with the following schedule:
   
   (a) Three thousand dollars for facilities that directly emit or have the potential to emit one hundred tons per year or more of any air pollutant, except hazardous air pollutants;
   
   (b) Three thousand dollars for facilities that directly emit or have the potential to emit ten tons per year or more of any single hazardous air pollutant or twenty-five tons per year or more of any combination of hazardous air pollutants;
   
   (c) One thousand five hundred dollars for facilities that directly emit or have the potential to emit fifty tons per year or more but less than one hundred tons per year of any air pollutant, except hazardous air pollutants;
   
   (d) One thousand five hundred dollars for facilities that directly emit or have the potential to emit (i) two and one-half tons per year or more but less than ten tons per year of any single hazardous air pollutant or (ii) ten tons per year or more but less than twenty-five tons per year of any combination of hazardous air pollutants;
   
   (e) Two hundred fifty dollars for facilities that directly emit or have the potential to emit less than fifty tons per year of any air pollutant, except hazardous air pollutants; and
   
   (f) Two hundred fifty dollars for facilities that directly emit or have the potential to emit (i) less than two and one-half tons per year of any single hazardous air pollutant and (ii) less than ten tons per year of any combination of hazardous air pollutants.
   
   (2) All application fees collected under this section shall be remitted to the State Treasurer for credit to the Air Quality Permit Cash Fund, which fund is hereby created. The Air Quality Permit Cash Fund shall be used for purposes identified in subsection (12) of section 81-1505. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
   
   (3) For purposes of this section, (a) air pollutant means particulate matter with a diameter of ten microns or less, sulfur dioxide or sulfur trioxide or any combination of the two, oxides of nitrogen, volatile organic compounds, and carbon monoxide and (b) hazardous air pollutant means any pollutant defined as such in rules and regulations adopted pursuant to subsection (12) of section 81-1505.

Source:Laws 2004, LB 449, § 2. 

Cross References Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.



81-1506. Unlawful acts.

   (1) It shall be unlawful for any person:
   
   (a) To cause pollution of any air, waters, or land of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, waters, or land of the state; or
   
   (b) To discharge or emit any wastes into any air, waters, or land of the state which reduce the quality of such air, waters, or land below the air, water, or land quality standards established therefor by the council. Any such action is hereby declared to be a public nuisance. An animal feeding operation is not a nuisance if:
   
   (i) Reasonable techniques are employed to keep dust, noise, insects, and odor at a minimum;
   
   (ii) It is in compliance with applicable regulations adopted by the council and zoning regulations of the local governing body having jurisdiction; and
   
   (iii) The action is brought by or on behalf of a person whose date of lawful possession of the land claimed to be affected by an animal feeding operation is subsequent to the issuance of an appropriate permit by the department for such operation or is subsequent to the operation of the feedlot and an onsite inspection by the department is made, before or after filing of the suit, and the inspection reveals that no permit is required for such operation.
   
   (2) It shall be unlawful for any person to:
   
   (a) Discharge any pollutant into waters of the state without obtaining a permit as required by the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., and by rules and regulations adopted and promulgated pursuant to section 81-1505;
   
   (b) Construct, install, modify, or operate any disposal system or part thereof or any extension or addition thereto without obtaining necessary permits from the department;
   
   (c) Increase in volume or strength any waste in excess of permitted discharges specified under any existing permit;
   
   (d) Construct, install, or operate any industrial, commercial, or other facility or extend, modify, or add to any such facility if the operation would cause an increase in the discharge or emission of wastes into the air, waters, or land of the state or would otherwise cause an alteration of the physical, chemical, or biological properties of any air, waters, or land of the state in a manner that is not lawfully authorized; or
   
   (e) Construct or use any new outlet for the discharge or emission of any wastes into the air, waters, or land of the state without the necessary permit.
   
   (3) It shall be unlawful for any person to:
   
   (a) Construct or operate a solid waste management facility without first obtaining a permit required under the Environmental Protection Act or under the Integrated Solid Waste Management Act and the rules and regulations adopted and promulgated by the council pursuant to the acts;
   
   (b) Violate any term or condition of a solid waste management facility permit;
   
   (c) Violate any rule or regulation adopted and promulgated by the council pursuant to the Environmental Protection Act or the Integrated Solid Waste Management Act; or
   
   (d) After October 1, 1993, dispose of any solid waste at any location other than a solid waste management facility holding a current permit issued by the department pursuant to the Integrated Solid Waste Management Act.
   
   (4) It shall be unlawful to:
   
   (a) Construct or operate an air pollution source without first obtaining a permit required under the Environmental Protection Act and the rules and regulations adopted and promulgated by the council pursuant to subsection (12) of section 81-1505;
   
   (b) Violate any term or condition of an air pollution permit or any emission limit set in the permit; or
   
   (c) Violate any emission limit or air quality standard established by the council.
   
   (5) It shall be unlawful for any person to:
   
   (a) Construct or operate an animal feeding operation without first obtaining a permit if required under the Livestock Waste Management Act or under the Environmental Protection Act and the rules and regulations adopted and promulgated by the council pursuant to such acts;
   
   (b) Violate any provision of the Livestock Waste Management Act;
   
   (c) Violate any term or condition of an animal feeding operation permit; or
   
   (d) Violate any rule or regulation adopted and promulgated by the council pursuant to the Environmental Protection Act or the Livestock Waste Management Act.
   
   (6) Nothing in this section shall be construed to authorize the department to specify the type, design, method of installation, or type of construction of any equipment of manufacturing processes.

Source:Laws 1971, LB 939, § 6; Laws 1972, LB 1435, § 5; Laws 1974, LB 1029, § 4; Laws 1977, LB 132, § 1; Laws 1980, LB 915, § 1; Laws 1983, LB 356, § 6; Laws 1992, LB 1257, § 83; Laws 1993, LB 623, § 4; Laws 1994, LB 570, § 8; Laws 1998, LB 1209, § 22; Laws 2004, LB 916, § 26. 

Cross References Integrated Solid Waste Management Act, see section 13-2001.
Livestock Waste Management Act, see section 54-2416.

Annotations 
Even in an industrial or rural area, one cannot conduct a business in such a manner as to materially prejudice a neighbor, but before enjoining it perpetually, a court of equity will usually allow the owner to correct or eliminate the cause of the grievance. Botsch v. Leigh Land Co., 195 Neb. 509, 239 N.W.2d 481 (1976).



81-1507. Director; violations; hearings; orders.

   (1) Whenever the director has reason to believe that a violation of any provision of the Environmental Protection Act, the Integrated Solid Waste Management Act, the Livestock Waste Management Act, a rule or regulation pursuant to such acts, or any order of the department has occurred, he or she may cause a written complaint to be served upon the alleged violator or violators or he or she may bring a criminal or civil action under section 81-1508.01 or 81-1508.02. The complaint shall specify the provision of the act, rule or regulation, or order alleged to be violated and the facts alleged to constitute a violation thereof and shall order that necessary corrective action be taken within a reasonable time to be prescribed in such order. Any such order shall become final unless each person named therein requests in writing a hearing before the director no later than thirty days after the date such order is served. In lieu of such order, the director may require that the alleged violator appear before the director at a time and place specified in the notice and answer the charges complained of. The notice shall be delivered to the alleged violator or violators in accordance with the provisions of subsection (5) of this section not less than thirty days before the time set for the hearing.
   
   Whenever, on the basis of any information, the director determines that there is or has been a release of hazardous waste or hazardous constituents into the environment from a facility authorized to operate under the Environmental Protection Act or from a facility subject to hazardous waste management regulations adopted and promulgated under the act, the director may issue an order requiring the owner or operator to monitor, investigate, and undertake corrective action or such other response at the facility or beyond the facility boundary where necessary to protect human health and the environment. In the case of any facility or site not in operation at the time a determination is made to require corrective action, if the director finds that the owner could not reasonably be expected to have actual knowledge of the presence of hazardous waste at the site, the director may issue an order requiring any previous owner or operator who could reasonably be expected to have actual knowledge to carry out the necessary monitoring, investigation, and corrective action.
   
   (2) The director shall afford an opportunity for a fair hearing, in accordance with the provisions of the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act, to the alleged violator or violators at the time and place specified in the notice or any modification thereof. On the basis of the evidence produced at the hearing, the director or hearing officer shall make findings of fact and conclusions of law and enter such order as in his or her opinion will best further the purposes of the acts and shall give written notice of such order to the alleged violator and to such other persons who appear at the hearing and make written request for notice of the order. If the hearing is held before any person other than the director, such person shall transmit a record of the hearing together with findings of fact and conclusions of law to the director. The director, prior to entering his or her order on the basis of such record, shall provide opportunity to the parties to submit for his or her consideration exceptions to the findings or conclusions and supporting reasons for such exceptions. The order of the director shall become final and binding on all parties unless appealed to the courts as provided in section 81-1509 within thirty days after notice has been sent to the parties.
   
   (3) Any person who is denied a permit by the director or who has such permit revoked or modified shall be afforded an opportunity for a fair hearing as provided in subsection (2) of this section in connection therewith upon written application to the director within thirty days after receipt of notice from the director of such denial, revocation, or modification. On the basis of such hearing the director shall affirm, modify, or revoke his or her previous determination.
   
   (4) Whenever the director finds that an emergency exists requiring immediate action to protect the public health and welfare, the director may, without notice or hearing, issue an order reciting the existence of such an emergency and requiring that such action be taken as the director deems necessary to meet the emergency. Notwithstanding the provisions of subsection (2) of this section, such order shall be effective immediately. Any person to whom such order is directed shall comply therewith immediately but on application to the director shall be afforded a hearing as soon as possible and not later than ten days after such application by such affected person. On the basis of such hearing, the director shall continue such order in effect, revoke it, or modify it.
   
   (5) Except as otherwise expressly provided, any notice, order, or other instrument issued by or under authority of the director shall be served on any person affected thereby in a manner provided for service of a summons in a civil action. Proof of service shall be filed in the office of the department.
   
   Every certificate or affidavit of service made and filed as provided in this section shall be prima facie evidence of the facts therein stated, and a certified copy thereof shall have like force and effect.
   
   (6) The hearings provided for in this section may be conducted by the director or by any member of the department acting in his or her behalf, or the director may designate hearing officers who shall have the power and authority to conduct such hearings in the name of the director at any time and place. A verbatim record of the proceedings of such hearings shall be taken and filed with the director, together with findings of fact and conclusions of law made by the director or hearing officer. Witnesses who are subpoenaed shall receive the same fees as in civil actions in the district court and mileage as provided in section 81-1176. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under the provisions of this section, the district court shall have jurisdiction, upon application of the director, to issue an order requiring such person to appear and testify or produce evidence as the case may require and any failure to obey such order of the court may be punished by such court as contempt thereof.
   
   If requested to do so by any party concerned with such hearing, the full stenographic notes, or tapes of an electronic transcribing device, of the testimony presented at such hearing shall be taken and filed. The stenographer shall, upon the payment of the stenographer's fee allowed by the court therefor, furnish a certified transcript of the whole or any part of the stenographer's notes to any party to the action requiring and requesting the same.

Source:Laws 1971, LB 939, § 7; Laws 1972, LB 1435, § 6; Laws 1974, LB 1029, § 5; Laws 1981, LB 204, § 197; Laws 1983, LB 447, § 99; Laws 1987, LB 152, § 2; Laws 1992, LB 1257, § 84; Laws 1998, LB 1209, § 23; Laws 1999, LB 784, § 2; Laws 1999, LB 789, § 1.


Cross References Integrated Solid Waste Management Act, see section 13-2001.
Livestock Waste Management Act, see section 54-2401.

Annotations 
The Director of Environmental Quality is not required to issue a complaint under this section for each and every possible violation of the Environmental Protection Act, but if the director decides to pursue enforcement of a violation, then the director is required to issue a complaint meeting the requirements of this section. State ex rel. Wood v. Fisher Foods, Ltd., 254 Neb. 982, 581 N.W.2d 409 (1998).



81-1508. Violations of Environmental Protection Act, Integrated Solid Waste Management Act, or Livestock Waste Management Act; civil penalties; injunctions.

(1) Any person who violates any of the provisions of the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act, fails to perform any duty imposed by either act or any rule or regulation issued thereunder, or violates any order or determination of the director promulgated pursuant to either act and causes the death of fish or other wildlife shall, in addition to the penalties provided in sections 81-1508.01 and 81-1508.02, be liable to pay to the state an additional amount equal to the sum of money reasonably necessary to restock waters with fish or replenish such wildlife as determined by the director after consultation with the Game and Parks Commission. Such amount may be recovered by the director on behalf of the state in a civil action brought in the district court of the county in which such violation or failure to perform the duty imposed occurred.

(2) Except as provided for in subsection (3) of this section for the handling, storage, treatment, transportation, or disposal of solid or hazardous waste, in addition to the penalties provided by this section and sections 81-1508.01 and 81-1508.02, the director, whenever he or she has reason to believe that any person, firm, or corporation is violating or threatening to violate any provision of the acts, any rule or regulation adopted and promulgated thereunder, or any order of the director, may petition the district court for an injunction. It shall be the duty of each county attorney or the Attorney General to whom the director reports a violation to cause appropriate proceedings to be instituted without delay to assure compliance with the acts.

(3) Upon receipt of evidence that the handling, storage, treatment, transportation, or disposal of any solid waste or hazardous waste is presenting an imminent and substantial endangerment to the health of humans or animals or to the environment, the director may petition the district court for an injunction to immediately restrain any person from contributing to the alleged acts, to stop such handling, storage, treatment, transportation, or disposal, and to take such other action as may be necessary. It shall be the duty of each county attorney or the Attorney General to whom the director reports a violation to cause appropriate proceedings to be instituted without delay to assure compliance with the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act.

Source:Laws 1971, LB 939, § 8; Laws 1972, LB 1435, § 7; Laws 1973, LB 538, § 3; Laws 1979, LB 342, § 3; Laws 1981, LB 216, § 4; Laws 1983, LB 356, § 7; Laws 1984, LB 1078, § 4; Laws 1987, LB 565, § 1; Laws 1991, LB 413, § 1; Laws 1992, LB 1257, § 85; Laws 1994, LB 570, § 9; Laws 1998, LB 1209, § 24. 

Cross References Integrated Solid Waste Management Act, see section 13-2001.
Livestock Waste Management Act, see section 54-2416.

Annotations 
A showing of pollution is not a requisite to recovery of a civil penalty under subsection (1)(c) of this section. In an action for civil penalties under subsection (1)(c) of this section, the size of the operation must be considered in determining the amount, if any, of a penalty. State ex rel. Grams v. Beach, 243 Neb. 126, 498 N.W.2d 83 (1993).



81-1508.01. Violations of Environmental Protection Act, Integrated Solid Waste Management Act, or Livestock Waste Management Act; criminal penalties.
   (1) Any person who violates the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act by knowingly and willfully committing any of the following offenses shall be guilty of a Class IV felony:
   (a) Violating any water pollution control law, rule, or regulation adopted pursuant to the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., or any permit or permit condition or limitation or failing to obtain a permit as required by the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act;
   (b) Violating any air pollution control law, rule, regulation, permit, license, or permit or license condition or limitation;
   (c) Violating any hazardous waste control law, rule, regulation, permit, license, or permit or license condition or limitation;
   (d) Violating any mineral production, mineral exploration, or injection control law, rule, regulation, permit, license, or permit or license condition or limitation;
   (e) Making any false statement, representation, or certification in any application, label, manifest, record, report, plan, or other document required to be filed or maintained by the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act or the rules or regulations adopted and promulgated pursuant to such acts;
   (f) Falsifying, tampering with, or rendering inaccurate any monitoring device or method used or required for compliance with any permit or license or the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act or the rules or regulations adopted and promulgated pursuant to such acts; or
   (g) Transporting hazardous waste to an unpermitted facility.
   (2) Any person who violates the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act by knowingly and willfully committing any of the following offenses shall be guilty of a Class I misdemeanor:
   (a) Violating any solid waste control law, rule, regulation, permit, license, or permit or license condition or limitation; or
   (b) Violating any livestock waste control law, rule, regulation, permit, license, or permit or license condition or limitation.
   (3) Any person who knowingly and willfully violates any other provision of the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act or any rule or regulation adopted and promulgated pursuant to such acts shall be guilty of a Class III misdemeanor.
   (4) Each violation under this section shall be actionable. In case of a continuing violation, each day shall constitute a separate offense. Any person who knowingly and willfully violates this section shall be subject to personal liability under this section. In assessing the amount of any fine, the court shall consider the degree and extent of the violation, the size of the operation, and any economic benefit derived from noncompliance.
Source:Laws 1994, LB 570, § 10; Laws 1998, LB 1209, § 25. 

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.



81-1508.02. Unlawful acts; civil penalty.
   (1) It shall be unlawful for any person:
   (a) To refuse the right of entry and inspection to any authorized representative of the department when the representative is acting under the provisions of a permit issued by the department;
   (b) To violate any air, water, or land quality standards, any emission or effluent standards or limitations, any permit or license condition or limitation, any order of the director, or any monitoring, reporting, or record-keeping requirements contained in or issued or entered into pursuant to the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act or the rules or regulations adopted and promulgated pursuant to such acts;
   (c) To make any false statement, representation, or certification in any application, label, record, report, plan, or other document required to be filed or maintained by such acts, rules, or regulations;
   (d) To falsify, tamper with, or render inaccurate any monitoring device or method used or required for compliance with a permit or license or such acts, rules, or regulations; or
   (e) To violate any other provision of or fail to perform any other duty imposed by such acts, rules, or regulations.
   (2) Each violation of this section or of section 81-1506 shall subject a person to a civil penalty of no more than ten thousand dollars per day. In case of a continuing violation, each day shall constitute a separate offense. In assessing the amount of the fine, the court shall consider the degree and extent of the violation, the size of the operation, and any economic benefit derived from noncompliance.
Source:Laws 1994, LB 570, § 11; Laws 1998, LB 1209, § 26; Laws 1999, LB 789, § 2.

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2401.

Annotations
      Before seeking the imposition of a civil penalty under this section, the Director of Environmental Quality must first issue a complaint satisfying the requirements of section 81-1507. State ex rel. Wood v. Fisher Foods, Ltd., 254 Neb. 982, 581 N.W.2d 409 (1998).
      
      

81-1509. Appeal; procedure.
   An appeal may be taken from any final decision of the director, and the appeal shall be in accordance with the Administrative Procedure Act.
Source:Laws 1971, LB 939, § 9; Laws 1972, LB 1435, § 8; Laws 1974, LB 1029, § 6; Laws 1979, LB 321, § 3; Laws 1988, LB 352, § 174.

Cross References
      Administrative Procedure Act, see section 84-920.

Annotations
      For the purposes of this section, no final decision has been rendered unless a complaint has first been issued by the Director of Environmental Quality. State ex rel. Wood v. Fisher Foods, Ltd., 254 Neb. 982, 581 N.W.2d 409 (1998).
      
      

81-1510. Director; voluntary compliance; records.
   (1) The director shall make every effort to obtain voluntary compliance through warning, conference, or any other appropriate means prior to initiating enforcement proceedings, except that such requirement shall not be construed to alter enforcement duties or requirements of the director and the department.
   (2) The director may require the maintenance of records relating to the operation of disposal systems, and any authorized representative of the director may examine and copy any such records or memoranda pertaining to the operation of disposal systems. Copies of such records shall be submitted to the director upon request.
Source:Laws 1971, LB 939, § 10; Laws 1972, LB 1435, § 9; Laws 1992, LB 1257, § 86. 



81-1511. Department; inspections; search warrants.
   Any duly authorized officer, employee, or representative of the director may at any reasonable time, with the consent of the person or persons in control of an air, land, or water contaminant source, enter and inspect any property, premise, or place on or at which such a contaminant source is located or being constructed, installed, or established for the purpose of ascertaining the state of compliance with the Environmental Protection Act, the Integrated Solid Waste Management Act, and the Livestock Waste Management Act and rules and regulations in force pursuant to the acts. A suitably restricted search warrant, upon a showing of probable cause in writing and upon oath or affirmation, may be issued by the district court as provided by law to such officer, employee, or representative of the department for the purpose of enabling him or her to make such inspection. No person shall refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection and who presents appropriate credentials and warrants. No person shall obstruct, hamper, or interfere with any such inspection. Nothing in this section shall be construed to prevent prompt inspection without consent or appropriate warrant in acute and compelling emergency situations when there is neither sufficient time nor opportunity to obtain a search warrant. If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status.
Source:Laws 1971, LB 939, § 11; Laws 1972, LB 1435, § 10; Laws 1987, LB 152, § 3; Laws 1992, LB 1257, § 87; Laws 1998, LB 1209, § 27. 

Cross References
      Inspection of grain warehouses, department, duties, see section 88-550.
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.



81-1512. Department; emergency powers.
   Nothing in the Environmental Protection Act, the Integrated Solid Waste Management Act, or the Livestock Waste Management Act shall be construed to limit any power which the Governor or any other officer may have to declare an emergency and act on the basis of such declaration if such power is conferred by statute or constitutional provision or inheres in the office.
Source:Laws 1971, LB 939, § 12; Laws 1987, LB 152, § 4; Laws 1992, LB 1257, § 88; Laws 1998, LB 1209, § 28. 

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.
      Livestock Waste Management Act, see section 54-2416.



81-1513. Variances from rules or regulations; notice; conditions for granting; appeal.
   (1) Any person who owns or is in control of any plant, building structure, process, or equipment may apply to the director for a variance from rules or regulations. The director may grant such variance if he or she finds that the emissions or discharges occurring or proposed to occur do not endanger or tend to endanger human health or safety or that compliance with the rules or regulations from which variance is sought would produce serious hardship without equal or greater benefits to the public. In making such findings the director shall give due consideration to all the facts and circumstances bearing upon the reasonableness of the emissions or discharges involved including, but not limited to:
   (a) The character and degree of injury to or interference with the health and physical property of the people;
   (b) The social and economic value of the source of the air, water, or land pollution;
   (c) The question of priority of location in the area involved; and
   (d) The technical practicability and economic reasonableness of reducing or eliminating the emissions or discharges resulting from such source.
   (2) No variance shall be granted until the director has considered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public. Before any variance is granted, the director shall give public notice of an application for such variance immediately upon receipt of such application and in accordance with the rules and regulations of the department. The notice shall be published in a newspaper of general circulation in the county in which the plant, building structure, process, or equipment on which the proposed variance is located.
   (3) Any variance or renewal thereof shall be granted within the requirements of subsection (1) of this section, for time periods and under conditions consistent with the reasons therefor, and within the following limitations:
   (a) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement, or control of the air, water, or land pollution involved, it shall be only until the necessary means for prevention, abatement, or control become known and available and subject to the taking of any substitute or alternate measures that the director may prescribe;
   (b) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the director, is requisite for the taking of the necessary measures. A variance granted on the ground specified in this section shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to such timetable; and
   (c) If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subdivision (a) or (b) of this subsection, it shall be for not more than one year.
   (4) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods which would be appropriate on initial granting of a variance. If complaint is made to the director on account of the variance, no renewal thereof shall be granted unless the director finds that renewal is justified. No renewal shall be granted except on application therefor. Any such application shall be made at least thirty days prior to the expiration of the variance. Immediately upon receipt of an application for renewal and before approving the renewal application, the director shall give public notice of such application in accordance with rules and regulations of the department. The public notice shall be published in a newspaper of general circulation in the county in which the plant, building structure, process, or equipment on which the variance is located.
   (5) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the director. The granting or denial of a variance or a renewal shall be by final order of the director. Any person adversely affected by such an order may appeal the decision, and the appeal shall be in accordance with the Administrative Procedure Act.
   (6) Nothing in this section and no variance or renewal granted pursuant to this section shall be construed to prevent or limit the application of the emergency provisions and procedures of section 81-1507 to any person or his or her property.
   (7) No variance shall be granted which will sanction any violation of state or federal statutes or regulations.
Source:Laws 1971, LB 939, § 13; Laws 1972, LB 1435, § 11; Laws 1974, LB 1029, § 7; Laws 1988, LB 352, § 175; Laws 2006, LB 975, § 19.

Cross References
      Administrative Procedure Act, see section 84-920.



81-1514. Land resources; public policy.
   It is hereby declared to be the public policy of the State of Nebraska to achieve and maintain such a reasonable degree of purity of the land resources of the state as will protect human health and safety, and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of the state, protect the scenic beauty of the state, facilitate the enjoyment of the natural attractions of the state, and to provide for the prevention, abatement and control of new or existing land pollution.
Source:Laws 1971, LB 939, § 14. 



81-1515. Repealed. Laws 1972, LB 1435, § 16.


81-1516. Refuse, garbage, and rubbish; disposal; conditions.
   No person shall dispose of any refuse, garbage, or rubbish at any place except a disposal area for which a permit has been issued as provided by the Environmental Protection Act or, on and after October 1, 1993, in a facility for which a permit has been issued under the Integrated Solid Waste Management Act. Nothing in either act and no act of the director shall usurp the legal right of a local governing body to develop and enforce local ordinances, codes, or rules and regulations on solid waste disposal equal to or more stringent than the provisions of the acts as necessary to protect the public health and welfare and the environment, and the provisions of the acts shall not relieve the applicant from obtaining a permit from a local governing body when required or relieve the person owning or operating a disposal area from responsibility for securing proper zoning permits or complying with all applicable local ordinances, codes, or rules and regulations not in conflict with the provisions of the acts.
Source:Laws 1971, LB 939, § 16; Laws 1987, LB 152, § 5; Laws 1992, LB 1257, § 89. 

Cross References
      Garbage and solid waste disposal facilities, construction and operation by cities of the first and second classes and villages, see sections 19-2101 to 19-2111.
      Integrated Solid Waste Management Act, see section 13-2001.
      Solid waste disposal areas and facilities, siting approval from city, village, or county, see sections 13-1701 to 13-1714.



81-1517. Political subdivision; permits; department; powers; evaluation and determination of terms and conditions; factors.
   (1) In issuing permits to any political subdivision under the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., the department may exercise all possible discretion allowed by the United States Environmental Protection Agency to enable the political subdivision to maintain environmental infrastructure while improving water quality in a manner that is sustainable and within the financial capability of the political subdivision. In exercising such discretion, the department may, when requested by a political subdivision, undertake an evaluation and make a determination of the necessity of specific permit terms and conditions to achieve water quality objectives. Such determination may affect the level of water treatment or pollution control, the length of time necessary for compliance, or both. Any political subdivision may request this evaluation and determination from the department in the issuance or reissuance of its permit.
   (2) The department may include, but is not limited to, consideration of the following factors in making its evaluation and determination under subsection (1) of this section:
   (a) The financial capability of a political subdivision to raise and secure necessary funding at a reasonable cost;
   (b) The affordability for ratepayers for implementation of pollution control options available to a political subdivision using the most appropriate methodology and measurements for the political subdivision in making such affordability determination;
   (c) The future growth potential and projections of a political subdivision and whether its infrastructure is sufficient for projected needs;
   (d) The overall costs and environmental benefits of control technologies;
   (e) Other environmental improvement investments made by a political subdivision; and
   (f) Any other relevant economic and social concerns or environmental conditions.
Source:Laws 2015, LB413, § 3. 



81-1517. Political subdivision; permits; department; powers; evaluation and determination of terms and conditions; factors.
   (1) In issuing permits to any political subdivision under the National Pollutant Discharge Elimination System created by the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., the department may exercise all possible discretion allowed by the United States Environmental Protection Agency to enable the political subdivision to maintain environmental infrastructure while improving water quality in a manner that is sustainable and within the financial capability of the political subdivision. In exercising such discretion, the department may, when requested by a political subdivision, undertake an evaluation and make a determination of the necessity of specific permit terms and conditions to achieve water quality objectives. Such determination may affect the level of water treatment or pollution control, the length of time necessary for compliance, or both. Any political subdivision may request this evaluation and determination from the department in the issuance or reissuance of its permit.
   (2) The department may include, but is not limited to, consideration of the following factors in making its evaluation and determination under subsection (1) of this section:
   (a) The financial capability of a political subdivision to raise and secure necessary funding at a reasonable cost;
   (b) The affordability for ratepayers for implementation of pollution control options available to a political subdivision using the most appropriate methodology and measurements for the political subdivision in making such affordability determination;
   (c) The future growth potential and projections of a political subdivision and whether its infrastructure is sufficient for projected needs;
   (d) The overall costs and environmental benefits of control technologies;
   (e) Other environmental improvement investments made by a political subdivision; and
   (f) Any other relevant economic and social concerns or environmental conditions.
Source:Laws 2015, LB413, § 3. 



81-1518. Environmental Infrastructure Sustainability Fund; created; use; investment.
   The Environmental Infrastructure Sustainability Fund is created. The fund shall be administered by the department. Revenue from the following sources shall be credited to the fund: (1) Application fees collected under section 81-1519; (2) reimbursements for actual costs necessary to complete environmental infrastructure sustainability evaluations as authorized under section 81-1517; (3) supplemental environmental projects resulting from enforcement settlements; and (4) gifts, grants, reimbursements, or appropriations from any source intended to be used for purposes of section 81-1517. The fund shall be used by the department to offset costs related to the completion of environmental infrastructure sustainability evaluations as authorized by section 81-1517. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
Source:Laws 2015, LB413, § 4. 

Cross References
      Nebraska Capital Expansion Act, see section 72-1269.
      Nebraska State Funds Investment Act, see section 72-1260.



81-1519. Political subdivision; evaluation; application fee; costs; refund.
   Any political subdivision requesting an evaluation authorized under section 81-1517 shall submit a request on a form approved by the department and provide the department with an application fee not to exceed five thousand dollars. If the costs of the department exceed the initial deposit, the department and political subdivision shall enter into an agreement establishing a schedule for the payment of additional costs by the political subdivision. After the completion of the environmental infrastructure sustainability evaluation, any balance of funds paid under this section shall be refunded to the political subdivision.
Source:Laws 2015, LB413, § 5. 




81-1520. Political subdivision; evaluation; fee schedule.
   The council shall adopt and promulgate rules and regulations to establish a tiered application fee schedule to be charged to political subdivisions requesting an environmental infrastructure sustainability evaluation as authorized under section 81-1517. The rules and regulations shall take into account the population of a political subdivision and any financial hardship that may impact the ability to pay the application fee.
Source:Laws 2015, LB413, § 6. 


81-1521. Repealed. Laws 1974, LB 1029, § 10.


81-1521.01. Transferred to section 81-1521.15.


81-1521.02. Transferred to section 81-1521.17.


81-1521.03. Transferred to section 81-1521.20.


81-1521.04. Transferred to section 81-1521.21.


81-1521.05. Transferred to section 81-1521.22.


81-1521.06. Transferred to section 81-1521.23.


81-1521.07. Repealed. Laws 1987, LB 152, § 12.


81-1521.08. Hazardous waste; terms, defined.
   For purposes of sections 81-1521.08 to 81-1521.23, unless the context otherwise requires:
   (1) Chief executive officer shall mean the mayor, city manager, or chairperson of the board of trustees of a municipality;
   (2) Commercial hazardous waste management facility shall mean a hazardous waste management facility which accepts hazardous waste for treatment, storage, or disposal which is generated by any person other than the person which owns or operates such facility;
   (3) Committee shall mean the specific site review committee established in response to a notice of intent filed pursuant to section 81-1521.09;
   (4) Hazardous waste management facility shall mean all contiguous land, and structures, other appurtenances, and improvements on the land, used for the treatment, storage, or disposal of hazardous waste. A hazardous waste management facility may consist of several treatment, storage, or disposal operational units such as one or more landfills or surface impoundments or any combination of such operational units;
   (5) Municipality shall mean an incorporated city or village; and
   (6) Other definitions found in section 81-1502 shall apply.
Source:Laws 1987, LB 114, § 2. 



81-1521.09. Hazardous waste; commercial hazardous waste management facility; notice of intent to apply for permit; fee; site review committee; director; appoint designee.
   (1) Commencing on June 30, 1988, any person who desires a permit for a commercial hazardous waste management facility shall, at least one hundred eighty days prior to making application therefor, file a notice of intent with the director on a form provided by the director. The notice of intent shall include such information as prescribed by the director and shall be accompanied by a fee established by the department in an amount sufficient, but not in excess of the amount necessary, to pay the department for the direct and indirect costs of processing the notice of intent and to pay the costs and expenses specified in section 81-1521.12. Within fifteen days of receipt of a notice of intent, the director shall notify the appropriate local officials and shall establish a specific site review committee. The purpose of establishing the committee shall be to provide for early public involvement in the consideration of a proposed facility.
   (2) The director may appoint a designee to carry out duties assigned to the director related to a notice of intent or an application for a permit except the duty to make the decision required by section 81-1521.19. If the applicant is an individual, the application shall include the applicant's social security number.
Source:Laws 1987, LB 114, § 3; Laws 1997, LB 752, § 225. 



81-1521.10. Hazardous waste; site review committee; membership.
   (1) The committee shall consist of twelve members, six of whom shall be local members and six of whom shall be regional members.
   (2) The six local members shall be chosen as follows:
   (a) If the proposed facility will be located within the zoning jurisdiction of a municipality, the chief executive officer of the municipality shall appoint six members who reside within such zoning jurisdiction;
   (b) If the proposed facility will be located in an unincorporated area which is within five miles of the zoning jurisdiction of one or more municipalities, the chief executive officer of each such municipality shall appoint a member who resides within the zoning jurisdiction of the respective municipality and the chairperson of the county board of the county in which the facility would be located shall appoint additional members who reside within five miles of the proposed facility for a total of six members; and
   (c) If the proposed facility will be located in an unincorporated area which is more than five miles from the zoning jurisdiction of any municipality, the chairperson of the county board of the county in which the facility would be located shall appoint six members who reside within five miles of the proposed facility.
   (3) The six regional members shall be appointed by the director to represent various interests affected by a proposed facility and shall include at least one environmental representative, one academic expert, one industry representative, one community planner, one representative of public interest groups, and one representative of the medical community. The regional members shall be appointed for two-year terms and shall serve whenever a committee is needed during that time. Alternates shall be appointed to serve in case a regional member is unable to do so or is already serving on a committee.
Source:Laws 1987, LB 114, § 4. 



81-1521.11. Hazardous waste; site review committee; meetings; officers; professional facilitator.
   The director shall organize a meeting of the committee within twenty-one days of the filing of a notice of intent by an applicant. The director shall serve as temporary chairperson of the committee and shall select as a professional facilitator a person trained in group dynamics and objectivity to handle committee meetings with the public and the applicant. At its first meeting, the committee shall select a chairperson and any other officers it deems necessary and shall adopt procedures for gathering information and preparing a report. The committee shall hold factfinding meetings near the proposed site for the facility. The applicant shall make a technical advisor and other resource people available to the committee.
Source:Laws 1987, LB 114, § 5. 



81-1521.12. Hazardous waste; department; provide staff; applicant; pay expenses.
   The department shall provide a secretary and other staff persons to assist the committee. The applicant shall pay the expenses for such clerical and other help and the salary of the professional facilitator, shall pay the costs of printing the committee's report, and shall reimburse the committee members for their mileage expenses at the rate provided in section 81-1176 for state employees. The department shall keep a record of all such costs and expenses and assess the applicant for any amount over the estimated amount on which the fee paid by the applicant was based.
Source:Laws 1987, LB 114, § 6. 



81-1521.13. Hazardous waste; site review committee; consider factors; enumerated.
   Factors to be considered by the committee shall include, but not be limited to:
   (1) Economic considerations such as whether the facility is needed, profit expectations for the facility, how the facility will be operated, effects on the community, the potential for compensation to the local governing body, and aspects related to closure of the facility;
   (2) The function of the facility, including the management processes involved, the wastes to be handled, the relationship to any integrated system or master plan for hazardous waste management, and plans for future expansion;
   (3) Considerations related to the technology to be used such as why that process was chosen, plans for quality control, reliability of the technology, and the sequence of steps involved from generation of the wastes to postclosure of the facility;
   (4) Characteristics of the site for the facility, the methods for determining the characteristics, and why the site was chosen;
   (5) Surface drainage, ground water protection, air emissions, and other factors related to environmental quality;
   (6) Transportation considerations such as methods to be used, waste containment during transport, party responsible for transport, timing of arrivals, routing, and response plans in case of spills;
   (7) Plans for responses to emergencies and for site security, qualifications and training of personnel, and actions to be taken when there are operating problems; and
   (8) Enforcement provisions, including applicable regulations, monitoring plans, who is responsible for enforcement, sequence and timing of possible enforcement, and the ability of governmental agencies to ensure compliance.
Source:Laws 1987, LB 114, § 7. 


81-1521.14. Hazardous waste; site review committee; issue report; contents.
   The committee shall issue a report no later than one hundred eighty days from the date the notice of intent is filed, except that the deadline may be extended by mutual agreement between the applicant and the committee. The report shall document the discussion of community concerns raised during review by the committee of the proposed commercial hazardous waste management facility, including identification and discussion of the issues which were resolved, the issues which were not resolved, and the questions which were not answered, including the reasons they were not answered.
   The report may also include recommendations on the compensation which the applicant should pay or provide to the local governing body. Any recommendations shall be subject to further negotiations between the applicant and the local governing body.
   Copies of the report shall be made available to committee members, the department, the applicant, and the public.
   After issuance of its report, the committee shall have no further duties, except that the department may ask the committee to review any changes related to the proposed commercial hazardous waste management facility which are proposed by the applicant and to amend its report if appropriate.
Source:Laws 1987, LB 114, § 8. 



81-1521.15. Commercial hazardous waste management facility; application for permit.
   At the conclusion of the process involving the committee, the person desiring a permit for a commercial hazardous waste management facility shall make application therefor to the director on a form provided by the director. The application shall contain the name and residence of the applicant, the location of the proposed facility, and such other information as may be necessary and shall be accompanied by a copy of the committee's report and any written response by the applicant to such report.
Source:Laws 1980, LB 853, § 8; R.S.1943, (1981), § 81-1521.01; Laws 1987, LB 114, § 9. 



81-1521.16. Commercial hazardous waste management facility; application; hearing by local governing body.
   If the application for a commercial hazardous waste management facility contains all of the information required by the department, the director shall send a copy of the application, of the committee's report, and of any response by the applicant to the report to the county board of the county if the proposed facility will be located outside the zoning jurisdiction of a city or village or to the city council or board of trustees if it will be located within the zoning jurisdiction of a city or village. A hearing shall be held by the county board, city council, or board of trustees within forty-five days of receipt of the copy of the application.
Source:Laws 1987, LB 114, § 10. 



81-1521.17. Commercial hazardous waste management facility; notice of hearing; decision by local governing body.
   Before the county board, city council, or board of trustees approves or disapproves a proposed commercial hazardous waste management facility, notice shall be given once at least thirty days but not more than forty days before the hearing and a second time at least ten days before the hearing. Such notice shall be given by publication of a notice in a newspaper either published in or having general circulation in the county, city, or village where the proposed facility is to be located and shall state the time and place of hearing, the name of the applicant for a permit, and the exact location of the proposed facility. In deciding whether to approve or disapprove such facility, the county board, city council, or board of trustees shall determine if such facility will be in compliance with its zoning laws or violate any local ordinances or resolutions. The local governing body shall make its decision within one hundred eighty days of receipt of a copy of the application from the director and shall notify the department and the applicant of its action. If the local governing body disapproves the application, it shall specify its reasons for disapproval. If the local governing body disapproves the application, the department may not take further action on the application unless the disapproval is reversed by court order. For purposes of appeal, the decision of the local governing body to disapprove the application shall be deemed a final order.
Source:Laws 1980, LB 853, § 9; R.S.1943, (1981), § 81-1521.02; Laws 1987, LB 114, § 11; Laws 1987, LB 152, § 8. 



81-1521.18. Commercial hazardous waste management facility; appeal of decision.
   The disapproval decision made by the local governing body may be appealed to district court. The court may affirm the decision or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the decision is:
   (1) In violation of constitutional provisions;
   (2) In excess of the statutory authority or jurisdiction of the local governing body;
   (3) Made upon unlawful procedure;
   (4) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or
   (5) Arbitrary or capricious.
Source:Laws 1987, LB 114, § 12. 



81-1521.19. Commercial hazardous waste management facility; approval; director; duties.
   Following approval action by the local governing body, the director shall determine if the proposed facility complies with the provisions of the Environmental Protection Act and all rules, regulations, and standards promulgated pursuant to such act. The review shall include, but not be limited to, consideration of factors related to air quality, water quality, waste management, and hydrogeology and of the environmental risks and benefits to the vicinity in which the facility would be located. Each person in the department who reviews the application shall prepare and sign a written statement for evaluation by the director who shall decide whether to approve or disapprove the application.
Source:Laws 1987, LB 114, § 13. 



81-1521.20. Commercial hazardous waste management facility; publication of notice; additional hearing; permit; issuance; conditions.
   The department shall publish notice of an application for a permit for a commercial hazardous waste management facility, together with the action taken by the local governing body, the director's decision, and whether the permit will be granted or denied, in a legal newspaper either published in or having general circulation in the vicinity affected. A copy of such notice shall also be provided to the applicant. The public may comment or request a public hearing within thirty days after the date such information is made available, and the director may, within his or her discretion, hold a hearing on the granting or denial of the permit if he or she determines that the circumstances justify it.
   Prior to issuing the permit, the director shall find that the applicant is a responsible and suitable person to conduct the business and that the proposed facility complies with the provisions specified in section 81-1521.19 and has the requisite approval of the local governing body. Permit conditions established by the department shall supersede any ordinances, resolutions, regulations, or requirements of the local governing body, then or thereafter in effect, which are inconsistent with such conditions.
Source:Laws 1980, LB 853, § 10; R.S.1943, (1981), § 81-1521.03; Laws 1987, LB 114, § 14. 
81-1521.21. Commercial hazardous waste management facility; permittee; financial responsibility and insurance.
   As a condition of granting a permit for any commercial hazardous waste management facility, the permittee shall provide proof of financial responsibility pursuant to subdivision (21)(a) of section 81-1505 and liability insurance, including coverage against nonsudden and accidental occurrences, in an amount determined by the director.
Source:Laws 1980, LB 853, § 11; Laws 1984, LB 1078, § 6; R.S.Supp.,1986, § 81-1521.04; Laws 1987, LB 114, § 15. 



81-1521.22. Commercial hazardous waste management facility permit; expiration; renewal.
   Permits shall expire five years following the date of issuance but may be renewed if the permittee has complied with the provisions of the Environmental Protection Act and the rules and regulations adopted and promulgated thereunder.
Source:Laws 1980, LB 853, § 12; R.S.1943, (1981), § 81-1521.05; Laws 1987, LB 114, § 16; Laws 1987, LB 152, § 9. 



81-1521.23. Commercial hazardous waste management facility permit; revocation; when.
   The director may revoke the permit for a commercial hazardous waste management facility, pursuant to subsection (3) of section 81-1507, if he or she finds that the facility is not being operated in accordance with the Environmental Protection Act and rules and regulations adopted and promulgated thereunder.
Source:Laws 1980, LB 853, § 13; R.S.1943, (1981), § 81-1521.06; Laws 1987, LB 114, § 17; Laws 1987, LB 152, § 10. 



81-1522. Repealed. Laws 1992, LB 1257, § 105.


81-1523. Accumulation of junk; unlawful.
   It shall be unlawful for any property owner or person in lawful possession of property to allow the accumulation of junk on property that is not purely agricultural in character to the extent that such accumulation is a potential hazard to health.
Source:Laws 1971, LB 939, § 23. 



81-1524. Accumulation of junk; investigation; removal; notice.
   The department of health of a city, or the director, as the case may be, shall have the power to investigate all complaints of violations of section 81-1523 and, if either the department or director finds that the property owner or person in lawful possession of the property has allowed an unlawful accumulation of junk, shall give notice to the owner or person in lawful possession of the property by certified or registered mail to remove the accumulation within thirty days.
Source:Laws 1971, LB 939, § 24. 



81-1525. Accumulation of junk; failure to remove; violation; penalty.
   Any property owner or person in lawful possession of property who fails or refuses to remove an accumulation of junk as directed by the director pursuant to section 81-1524 shall be guilty of a Class IV misdemeanor.
Source:Laws 1971, LB 939, § 25; Laws 1972, LB 1435, § 13; Laws 1977, LB 39, § 305; Laws 2007, LB8, § 1.



81-1526. Rules and regulations; provisions applicable; exceptions.
   (1) All rules and regulations adopted by the council and all hearings and other proceedings of the director, and judicial review thereof, shall be subject to the provisions of the Administrative Procedure Act.
   (2) Nothing in this section shall be construed to require a hearing prior to the issuance of an emergency order pursuant to section 81-1507.
   (3) Nothing in the Administrative Procedure Act shall be construed to render inapplicable or unenforceable the procedure set forth in section 81-1507. In any case of inconsistency or conflict, the provisions of section 81-1507 shall prevail.
Source:Laws 1971, LB 939, § 26; Laws 1974, LB 1029, § 8. 

Cross References
      Administrative Procedure Act, see section 84-920.



81-1527. Records and information; confidential use.
   (1) Any records or other information furnished to or obtained by the department concerning one or more air, water, or land contaminant sources, which records or information, as certified by the owner or operator and determined by the director to relate to methods or processes entitled to protection as trade secrets of such owner or operator, shall be only for the confidential use of the department in the administration of the Environmental Protection Act and the Integrated Solid Waste Management Act unless such owner or operator expressly agrees to their publication or availability to the general public, except that emission data obtained under the Clean Air Act, as amended, 42 U.S.C. 7401 et seq., or effluent data, permit applications, draft permits, or permits as issued, all under the National Pollutant Discharge Elimination System, pursuant to the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, as amended, shall be available to the public during business hours. Any information to be accorded confidential status in a national pollutant discharge elimination system form shall be forwarded to the Regional Administrator of the Environmental Protection Agency for concurrence with the director's determination of such status. Nothing in this section shall be construed to prevent the use of such records or information by the department in compiling or publishing analyses or summaries relating to the general condition of water or the land or the outdoor atmosphere as long as such analyses or summaries do not identify any owner or operator or reveal any information otherwise confidential under this section.
   (2) The director shall permit the Administrator or Regional Administrator of the Environmental Protection Agency or his or her delegates to inspect the confidential records of the department concerning a given source.
Source:Laws 1971, LB 939, § 27; Laws 1972, LB 1435, § 14; Laws 1974, LB 1029, § 9; Laws 1984, LB 1078, § 7; Laws 1992, LB 1257, § 90. 

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.



81-1528. Act; political subdivision exempt; when; council; rules and regulations.
   (1) The Environmental Protection Act shall not apply in any political subdivision which provides for the control of air, water, or land pollution by resolution, ordinance, or regulation not inconsistent with the substantive provisions of the Environmental Protection Act or any rule or regulation adopted pursuant to such act, except that no such resolution, ordinance, or regulation shall become effective until a certificate of exemption has been issued by the director. Such certificate of exemption shall be available for inspection in the office of the county, city, or village clerk as the case may be.
   (2) If the director determines at any time after the issuance of such a certificate that a resolution, ordinance, or regulation is being enforced in a manner inconsistent with the Environmental Protection Act or any rule or regulation adopted pursuant to such act in any political subdivision holding a certificate of exemption, the director may suspend the certificate of exemption and the Environmental Protection Act shall apply in such political subdivision until such standards are met and a new certificate is issued.
   (3) Any political subdivision desiring a certificate of exemption shall make application for such certificate by filing a petition for certificate of exemption with the director. The director or his or her designated representative shall promptly investigate such petition. If the recommendation of the director or his or her designated representative is against the granting of a certificate of exemption and he or she, in his or her discretion, concludes that a hearing would be advisable, a hearing shall be held as provided in section 81-1507 on the questions of whether the resolution, ordinance, or regulation is consistent with the substantive provisions of the Environmental Protection Act or any rule or regulation adopted pursuant to such act and whether adequate provisions have been made for enforcement. The burden of proof shall be upon the political subdivision. A like hearing shall be held upon any proposed suspension of a certificate of exemption.
   (4) If the director finds that the location, character, or extent of particular concentrations of population, air, water, or land contaminant sources, the geographic, topographic, or meteorological considerations, or any combination thereof are such as to make impracticable the maintenance of appropriate levels of air, water, or land quality without an areawide air, water, or land pollution control program, the director may determine the boundaries within which such program is necessary and require it as the only acceptable alternative to direct state administration.
   (5) Nothing in the Environmental Protection Act shall be construed to supersede or oust the jurisdiction of any local air, water, or land pollution control program in operation on May 26, 1971. Such program shall meet all requirements of the Environmental Protection Act for a local air, water, or land pollution control program. Any approval required from the department shall be deemed granted unless the department takes specific action to the contrary.
   (6) Until October 1, 1993, cities of the second class and villages shall be exempt from the provisions of the Environmental Protection Act and the Integrated Solid Waste Management Act pertaining to permits for and control of nonhazardous solid waste disposal systems if such cities and villages provide solid waste disposal systems which do not result in the pollution of waters of the state. The department shall act in an advisory capacity to such cities and villages and shall have the right to inspect solid waste disposal sites and evaluate them according to the site evaluation criteria promulgated pursuant to the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq. The department shall notify the community of the results of its evaluation.
   (7) The council shall, by July 1, 1992, adopt and promulgate rules and regulations which provide standards for the closure and postclosure care of all landfills, including landfills previously exempted under this section.
Source:Laws 1971, LB 939, § 28; Laws 1972, LB 1435, § 15; Laws 1980, LB 853, § 7; Laws 1984, LB 1078, § 8; Laws 1991, LB 67, § 2; Laws 1992, LB 1257, § 91. 

Cross References
      Integrated Solid Waste Management Act, see section 13-2001.


81-1528.01. Repealed. Laws 1986, LB 491, § 40.


81-1529. Act, how construed.
   Nothing in the Environmental Protection Act shall be construed to:
   (1) Grant to the department any jurisdiction or authority with respect to air contamination existing solely within commercial and industrial plants, works, or shops or private property appurtenant thereto;
   (2) Affect the relations between employers and employees with respect to or arising out of any condition of air contamination or air pollution; or
   (3) Supersede or limit the applicability of any law or ordinance relating to sanitation, industrial health, or safety.
Source:Laws 1971, LB 939, § 29; Laws 1987, LB 152, § 11. 


81-1530. Repealed. Laws 1987, LB 152, § 12.


81-1531. Repealed. Laws 1974, LB 1029, § 10.


81-1531.01. Act, how construed.
   Nothing in the Environmental Protection Act shall be construed to apply to any wells or holes covered by sections 57-901 to 57-922.
Source:Laws 1983, LB 356, § 10; Laws 2016, LB1082, § 17. 


81-1531.02. Uranium mining; department; regulatory duties; prohibited methods; enforcement.
   (1) The department shall recommend an appropriate regulatory policy for controlling uranium mining to be presented to the council and the Legislature by January 1, 1986. The department shall evaluate all reasonable regulatory options for addressing the impacts on air, land, and water quality of uranium mining by methods other than mineral production and injection wells which are presently regulated. The department shall examine and consider regulatory programs created by other states and the federal government, their applicability to Nebraska, and their success in the states or areas where they are used and shall consider, but not be limited to, the following policy options:
   (a) The development of uranium surface and shaft mining regulations;
   (b) The development of regulations addressing appropriate development, mitigation, or reclamation standards for uranium mining or uranium mining-related activities;
   (c) The appropriateness of developing regulations addressing ground or surface water use standards for uranium mining or uranium mining-related activities as a means of limiting the impact of uranium mining on land and water resources; and
   (d) The use of any other existing state regulatory programs to control or regulate the impacts of uranium mining on land and water resources.
   (2) The department shall perform the evaluation in cooperation with other state agencies which have or could have a role in regulating the impacts of uranium mining on Nebraska's people and resources or in controlling other uranium mining activities. The department shall also create a citizen advisory panel, of interested or affected parties, which shall be consulted for its input and opinion on the results of the evaluation of regulatory options.
   (3) Uranium mining by any method other than mineral production and injection wells shall be prohibited until legislation is passed authorizing the department to regulate such mining activities. It is the intent of the Legislature that uranium mining shall be regulated by the department. Upon receipt of evidence that uranium mining by any method other than by mineral production and injection wells or related activities are presenting or are likely to present an imminent and substantial threat to the environment, the director shall petition the district court for an injunction to immediately restrain any person from contributing to the alleged acts or to require any person to stop such acts or to take such other action as may be necessary. It shall be the duty of each county attorney or the Attorney General to whom the director reports a violation to cause appropriate proceedings to be instituted without delay to assure compliance with this section.
Source:Laws 1983, LB 356, § 11; Laws 1984, LB 742, § 2; Laws 1986, LB 1008, § 3. 



81-1532. Act, how cited.
   Sections 81-1501 to 81-1532 shall be known and may be cited as the Environmental Protection Act.
Source:Laws 1971, LB 939, § 32; Laws 1983, LB 356, § 12; Laws 1987, LB 114, § 18; Laws 1991, LB 528, § 2; Laws 1992, LB 1257, § 92; Laws 1994, LB 570, § 12; Laws 1998, LB 1209, § 30; Laws 2000, LB 1234, § 13; Laws 2001, LB 461, § 8; Laws 2004, LB 449, § 3; Laws 2015, LB413, § 7. 


















































                                Public Records

84-712. Public records; free examination; memorandum and abstracts; copies; fees.
   (1) Except as otherwise expressly provided by statute, all citizens of this state and all other persons interested in the examination of the public records as defined in section 84-712.01 are hereby fully empowered and authorized to (a) examine such records, and make memoranda, copies using their own copying or photocopying equipment in accordance with subsection (2) of this section, and abstracts therefrom, all free of charge, during the hours the respective offices may be kept open for the ordinary transaction of business and (b) except if federal copyright law otherwise provides, obtain copies of public records in accordance with subsection (3) of this section during the hours the respective offices may be kept open for the ordinary transaction of business.
   (2) Copies made by citizens or other persons using their own copying or photocopying equipment pursuant to subdivision (1)(a) of this section shall be made on the premises of the custodian of the public record or at a location mutually agreed to by the requester and the custodian.
   (3)(a) Copies may be obtained pursuant to subdivision (1)(b) of this section only if the custodian has copying equipment reasonably available. Such copies may be obtained in any form designated by the requester in which the public record is maintained or produced, including, but not limited to, printouts, electronic data, discs, tapes, and photocopies. This section shall not be construed to require a custodian to copy any public record that is available to the requester on the custodian's web site on the Internet. The custodian of the public record is required to provide the location of the public record on the Internet to the requester. If the requester does not have reasonable access to the Internet due to lack of computer, lack of Internet availability, or inability to use a computer or the Internet, the custodian shall produce copies for the requester.
   (b) Except as otherwise provided by statute, the public body, public entity, or public official which is the custodian of a public record may charge a fee for providing copies of such public record pursuant to subdivision (1)(b) of this section, which fee shall not exceed the actual added cost of making the copies available. For purposes of this subdivision, (i) for photocopies, the actual added cost of making the copies available shall not exceed the amount of the reasonably calculated actual added cost of the photocopies, which may include a reasonably apportioned cost of the supplies, such as paper, toner, and equipment, used in preparing the copies, as well as any additional payment obligation of the custodian for time of contractors necessarily incurred to comply with the request for copies, (ii) for printouts of computerized data on paper, the actual added cost of making the copies available shall include the reasonably calculated actual added cost of computer run time and the cost of materials for making the copy, and (iii) for electronic data, the actual added cost of making the copies available shall include the reasonably calculated actual added cost of the computer run time, any necessary analysis and programming by the public body, public entity, public official, or third-party information technology services company contracted to provide computer services to the public body, public entity, or public official, and the production of the report in the form furnished to the requester.
   (c) The actual added cost used as the basis for the calculation of a fee for records shall not include any charge for the existing salary or pay obligation to the public officers or employees with respect to the first four cumulative hours of searching, identifying, physically redacting, or copying. A special service charge reflecting the calculated labor cost may be included in the fee for time required in excess of four cumulative hours, since that large a request may cause some delay or disruption of the other responsibilities of the custodian's office, except that the fee for records shall not include any charge for the services of an attorney to review the requested public records seeking a legal basis to withhold the public records from the public.
   (d) State agencies which provide electronic access to public records through a portal established under section 84-1204 shall obtain approval of their proposed reasonable fees for such records pursuant to sections 84-1205.02 and 84-1205.03, if applicable, and the actual added cost of making the copies available may include the approved fee for the portal.
   (e) This section shall not be construed to require a public body or custodian of a public record to produce or generate any public record in a new or different form or format modified from that of the original public record.
   (f) If copies requested in accordance with subdivision (1)(b) of this section are estimated by the custodian of such public records to cost more than fifty dollars, the custodian may require the requester to furnish a deposit prior to fulfilling such request.
   (4) Upon receipt of a written request for access to or copies of a public record, the custodian of such record shall provide to the requester as soon as is practicable and without delay, but not more than four business days after actual receipt of the request, an estimate of the expected cost of the copies and either (a) access to or, if copying equipment is reasonably available, copies of the public record, (b) if there is a legal basis for denial of access or copies, a written denial of the request together with the information specified in section 84-712.04, or (c) if the entire request cannot with reasonable good faith efforts be fulfilled within four business days after actual receipt of the request due to the significant difficulty or the extensiveness of the request, a written explanation, including the earliest practicable date for fulfilling the request, an estimate of the expected cost of any copies, and an opportunity for the requester to modify or prioritize the items within the request. The requester shall have ten business days to review the estimated costs, including any special service charge, and request the custodian to fulfill the original request, negotiate with the custodian to narrow or simplify the request, or withdraw the request. If the requester does not respond to the custodian within ten business days, the custodian shall not proceed to fulfill the request. The four business days shall be computed by excluding the day the request is received, after which the designated period of time begins to run. Business day does not include a Saturday, a Sunday, or a day during which the offices of the custodian of the public records are closed.
Source:R.S.1866, c. 44, § 1, p. 297; R.S.1913, § 5595; C.S.1922, § 4902; Laws 1925, c. 146, § 1, p. 381; Laws 1927, c. 193, § 1, p. 551; C.S.1929, § 84-712; R.S.1943, § 84-712; Laws 1961, c. 454, § 3, p. 1383; Laws 1979, LB 86, § 1; Laws 2000, LB 628, § 1; Laws 2012, LB719, § 6; Laws 2013, LB363, § 1.

Annotations
      A party seeking a writ of mandamus under section 84-712.03 has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or the other person interested in the examination of the public records; (2) the document sought is a public record as defined by section 84-712.01; and (3) the requesting party has been denied access to the public record as guaranteed by this section. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Dockets of justice containing entry of judgments are public records. State ex rel. Newby v. Ellsworth, 61 Neb. 444, 85 N.W. 439 (1901).
      
      Party was not entitled to inspection of certified copy of court reporter's record before same is offered in evidence. Spielman v. Flynn, 19 Neb. 342, 27 N.W. 224 (1886).
      
      Any person interested may examine records without charge, and fee book of clerk of court is public record. State ex rel. Griggs v. Meeker, 19 Neb. 106, 26 N.W. 620 (1886).
      
      Numerical indexes of instruments concerning title to real estate kept by county clerk are public records. State ex rel. Miller v. Sovereign, 17 Neb. 173, 22 N.W. 353 (1885).
      
      The Nebraska Department of Correctional Services had no obligation to transport an inmate in its custody to an office where a particular record was located to examine the record. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006).
      

84-712.01. Public records; right of citizens; full access; fee authorized.
   (1) Except when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form shall remain a public record when maintained in computer files.
   (2) When a custodian of a public record of a county provides to a member of the public, upon request, a copy of the public record by transmitting it from a modem to an outside modem, a reasonable fee may be charged for such specialized service. Such fee may include a reasonable amount representing a portion of the amortization of the cost of computer equipment, including software, necessarily added in order to provide such specialized service. This subsection shall not be construed to require a governmental entity to acquire computer capability to generate public records in a new or different form when that new form would require additional computer equipment or software not already possessed by the governmental entity.
   (3) Sections 84-712 to 84-712.03 shall be liberally construed whenever any state, county, or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of the government and the public bodies and entities created to serve them.
Source:Laws 1961, c. 454, § 2, p. 1383; Laws 1979, LB 86, § 2; Laws 1994, LB 1275, § 12; Laws 2000, LB 628, § 2. 

Annotations
      A four-part functional equivalency test is the appropriate analytical model for determining whether a private entity which has an ongoing relationship with a governmental entity can be considered an agency, branch, or department of such governmental entity within the meaning of subsection (1) of this section, such that its records are subject to disclosure upon request under Nebraska's public records laws. The factors to be considered in applying this test are (1) whether the private entity performs a governmental function, (2) the level of governmental funding of the private entity, (3) the extent of government involvement with or regulation of the private entity, and (4) whether the private entity was created by the government. Frederick v. City of Falls City, 289 Neb. 864, 857 N.W.2d 569 (2015).
      
      A party seeking a writ of mandamus under section 84-712.03 has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records; (2) the document sought is a public record as defined by this section; and (3) the requesting party has been denied access to the public record as guaranteed by section 84-712. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Subsection (1) of this section does not require a citizen to show that a public body has actual possession of a requested record. Subsection (3) of this section requires that the "of or belonging to" language be construed liberally; this broad definition includes any documents or records that a public body is entitled to possess -- regardless of whether the public body takes possession. The public's right of access should not depend on where the requested records are physically located. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Under subsection (1) of this section, the reference to "data" in the last sentence shows that the Legislature intended public records to include a public body's component information, not just its completed reports or documents. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Under this section, requested materials in a private party's possession are public records if the following requirements are met: (1) The public body, through a delegation of its authority to perform a government function, contracted with a private party to carry out the government function; (2) the private party prepared the records under the public body's delegation of authority; (3) the public body was entitled to possess the materials to monitor the private party's performance; and (4) the records are used to make a decision affecting public interest. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Records of deaths that occurred at a state-run mental institution, indicating the place of burial, are public records as defined by this section. State ex rel. Adams Cty. Historical Soc. v. Kinyoun, 277 Neb. 749, 765 N.W.2d 212 (2009).



84-712.02. Public records; claimants before United States Department of Veterans Affairs; certified copies free of charge.
   When it is requested by any claimant before the United States Department of Veterans Affairs or his or her agent or attorney that certified copies of any public record be furnished for the proper and effective presentation of any such claim in such department, the officer in charge of such public records shall furnish or cause to be furnished to such claimant or his or her agent or attorney a certified copy thereof free of charge.
Source:Laws 1961, c. 454, § 4, p. 1384; Laws 1991, LB 2, § 30. 


84-712.03. Public records; denial of rights; remedies.
   (1) Any person denied any rights granted by sections 84-712 to 84-712.03 may elect to:
   (a) File for speedy relief by a writ of mandamus in the district court within whose jurisdiction the state, county, or political subdivision officer who has custody of the public record can be served; or
   (b) Petition the Attorney General to review the matter to determine whether a record may be withheld from public inspection or whether the public body that is custodian of such record has otherwise failed to comply with such sections, including whether the fees estimated or charged by the custodian are actual added costs or special service charges as provided under section 84-712. This determination shall be made within fifteen calendar days after the submission of the petition. If the Attorney General determines that the record may not be withheld or that the public body is otherwise not in compliance, the public body shall be ordered to disclose the record immediately or otherwise comply. If the public body continues to withhold the record or remain in noncompliance, the person seeking disclosure or compliance may (i) bring suit in the trial court of general jurisdiction or (ii) demand in writing that the Attorney General bring suit in the name of the state in the trial court of general jurisdiction for the same purpose. If such demand is made, the Attorney General shall bring suit within fifteen calendar days after its receipt. The requester shall have an absolute right to intervene as a full party in the suit at any time.
   (2) In any suit filed under this section, the court has jurisdiction to enjoin the public body from withholding records, to order the disclosure, and to grant such other equitable relief as may be proper. The court shall determine the matter de novo and the burden is on the public body to sustain its action. The court may view the records in controversy in camera before reaching a decision, and in the discretion of the court other persons, including the requester, counsel, and necessary expert witnesses, may be permitted to view the records, subject to necessary protective orders.
   (3) Proceedings arising under this section, except as to the cases the court considers of greater importance, shall take precedence on the trial docket over all other cases and shall be assigned for hearing, trial, or argument at the earliest practicable date and expedited in every way.
Source:Laws 1961, c. 454, § 5, p. 1384; Laws 1977, LB 39, § 316; Laws 1979, LB 86, § 3; Laws 2000, LB 628, § 3; Laws 2013, LB363, § 2; Laws 2018, LB193, § 93. 

Operative Date: July 19, 2018 

Annotations
      A party seeking a writ of mandamus under this section has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records; (2) the document sought is a public record as defined by section 84-712.01; and (3) the requesting party has been denied access to the public record as guaranteed by section 84-712. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      If a requesting party satisfies its prima facie claim for release of public records under this section, the public body opposing disclosure must show by clear and convincing evidence that section 84-712.05 or 84-712.08 exempts the records from disclosure. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      When a writ of mandamus is sought pursuant to this section, the party seeking the writ must first show (1) that the party is a citizen of the state or other person interested in the examination of the public records, (2) that the document sought by the party is a public record as defined by section 84-712.01, and (3) that the party has been denied the access to the public record guaranteed by section 84-712; thereafter, if the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and convincing evidence, that the public record at issue is exempt from the disclosure requirement under one of the exceptions provided by section 84-712.05 or section 84-712.08. State ex rel. Neb. Health Care Assn. v. Dept. of Health and Human Services Finance and Support, 255 Neb. 784, 587 N.W.2d 100 (1998).
      
      
84-712.04. Public records; denial of rights; public body; provide information.
   (1) Any person denied any rights granted by sections 84-712 to 84-712.03 shall receive in written form from the public body which denied the request for records at least the following information:
   (a) A description of the contents of the records withheld and a statement of the specific reasons for the denial, correlating specific portions of the records to specific reasons for the denial, including citations to the particular statute and subsection thereof expressly providing the exception under section 84-712.01 relied on as authority for the denial;
   (b) The name of the public official or employee responsible for the decision to deny the request; and
   (c) Notification to the requester of any administrative or judicial right of review under section 84-712.03.
   (2) Each public body shall maintain a file of all letters of denial of requests for records. This file shall be made available to any person on request.
Source:Laws 1979, LB 86, § 4; Laws 1983, LB 3, § 1. 


84-712.05. Records which may be withheld from the public; enumerated.
   The following records, unless publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties, may be withheld from the public by the lawful custodian of the records:
   (1) Personal information in records regarding a student, prospective student, or former student of any educational institution or exempt school that has effectuated an election not to meet state approval or accreditation requirements pursuant to section 79-1601 when such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on February 1, 2013, and regulations adopted thereunder;
   (2) Medical records, other than records of births and deaths and except as provided in subdivision (5) of this section, in any form concerning any person; records of elections filed under section 44-2821; and patient safety work product under the Patient Safety Improvement Act;
   (3) Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose;
   (4) Records which represent the work product of an attorney and the public body involved which are related to preparation for litigation, labor negotiations, or claims made by or against the public body or which are confidential communications as defined in section 27-503;
   (5) Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, when the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training, except that this subdivision shall not apply to records so developed or received:
   (a) Relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person; or
   (b) Relating to the cause of or circumstances surrounding the death of an employee arising from or related to his or her employment if, after an investigation is concluded, a family member of the deceased employee makes a request for access to or copies of such records. This subdivision does not require access to or copies of informant identification, the names or identifying information of citizens making complaints or inquiries, other information which would compromise an ongoing criminal investigation, or information which may be withheld from the public under another provision of law. For purposes of this subdivision, family member means a spouse, child, parent, brother, sister, grandchild, or grandparent by blood, marriage, or adoption;
   (6) Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of any interest in real or personal property, prior to completion of the purchase or sale;
   (7) Personal information in records regarding personnel of public bodies other than salaries and routine directory information;
   (8) Information solely pertaining to protection of the security of public property and persons on or within public property, such as specific, unique vulnerability assessments or specific, unique response plans, either of which is intended to prevent or mitigate criminal acts the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schema, passwords, and user identification names; guard schedules; lock combinations; or public utility infrastructure specifications or design drawings the public disclosure of which would create a substantial likelihood of endangering public safety or property, unless otherwise provided by state or federal law;
   (9) The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Lottery Division of the Department of Revenue and those persons or entities with which the division has entered into contractual relationships. Nothing in this subdivision shall allow the division to withhold from the public any information relating to amounts paid persons or entities with which the division has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the city, village, or county where the prize winner resides;
   (10) With respect to public utilities and except as provided in sections 43-512.06 and 70-101, personally identified private citizen account payment and customer use information, credit information on others supplied in confidence, and customer lists;
   (11) Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;
   (12) Correspondence, memoranda, and records of telephone calls related to the performance of duties by a member of the Legislature in whatever form. The lawful custodian of the correspondence, memoranda, and records of telephone calls, upon approval of the Executive Board of the Legislative Council, shall release the correspondence, memoranda, and records of telephone calls which are not designated as sensitive or confidential in nature to any person performing an audit of the Legislature. A member's correspondence, memoranda, and records of confidential telephone calls related to the performance of his or her legislative duties shall only be released to any other person with the explicit approval of the member;
   (13) Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in Nebraska when necessary to protect the site from a reasonably held fear of theft, vandalism, or trespass. This section shall not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, the Unmarked Human Burial Sites and Skeletal Remains Protection Act, or the federal Native American Graves Protection and Repatriation Act;
   (14) Records or portions of records kept by public bodies which maintain collections of archaeological, historical, or paleontological significance which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the Unmarked Human Burial Sites and Skeletal Remains Protection Act or the federal Native American Graves Protection and Repatriation Act;
   (15) Job application materials submitted by applicants, other than finalists or a priority candidate for a position described in section 85-106.06 selected using the enhanced public scrutiny process in section 85-106.06, who have applied for employment by any public body as defined in section 84-1409. For purposes of this subdivision, (a) job application materials means employment applications, resumes, reference letters, and school transcripts and (b) finalist means any applicant who is not an applicant for a position described in section 85-106.06 and (i) who reaches the final pool of applicants, numbering four or more, from which the successful applicant is to be selected, (ii) who is an original applicant when the final pool of applicants numbers less than four, or (iii) who is an original applicant and there are four or fewer original applicants;
   (16) Records obtained by the Public Employees Retirement Board pursuant to section 84-1512;
   (17) Social security numbers; credit card, charge card, or debit card numbers and expiration dates; and financial account numbers supplied to state and local governments by citizens;
   (18) Information exchanged between a jurisdictional utility and city pursuant to section 66-1867;
   (19) Draft records obtained by the Nebraska Retirement Systems Committee of the Legislature and the Governor from Nebraska Public Employees Retirement Systems pursuant to subsection (4) of section 84-1503;
   (20) All prescription drug information submitted pursuant to section 71-2454, all data contained in the prescription drug monitoring system, and any report obtained from data contained in the prescription drug monitoring system; and
   (21) Information obtained by any government entity, whether federal, state, county, or local, regarding firearm registration, possession, sale, or use that is obtained for purposes of an application permitted or required by law or contained in a permit or license issued by such entity. Such information shall be available upon request to any federal, state, county, or local law enforcement agency.
Source:Laws 1979, LB 86, § 5; Laws 1983, LB 108, § 1; Laws 1983, LB 565, § 1; Laws 1993, LB 579, § 6; Laws 1993, LB 590, § 6; Laws 1993, LB 719, § 2; Laws 1994, LB 1061, § 7; Laws 1994, LB 1224, § 88; Laws 1995, LB 343, § 7; Laws 1995, LB 509, § 6; Laws 1999, LB 137, § 1; Laws 2002, LB 276, § 7; Laws 2004, LB 236, § 1; Laws 2004, LB 868, § 3; Laws 2005, LB 361, § 37; Laws 2007, LB389, § 1; Laws 2009, LB188, § 8; Laws 2009, LB658, § 7; Laws 2011, LB230, § 1; Laws 2013, LB410, § 17; Laws 2016, LB447, § 45; Laws 2016, LB471, § 3; Laws 2016, LB1109, § 1; Laws 2018, LB859, § 1; Laws 2018, LB902, § 1.
 
Effective Date: July 19, 2018

Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB859, section 1, with LB902, section 1, to reflect all amendments.

Cross References
      Patient Safety Improvement Act, see section 71-8701.
      Unmarked Human Burial Sites and Skeletal Remains Protection Act, see section 12-1201.

Annotations
      Because the Legislature has expressed a strong public policy for disclosure, Nebraska courts must narrowly construe statutory exemptions shielding public records from disclosure. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      If a requesting party satisfies its prima facie claim for release of public records under section 84-712.03, the public body opposing disclosure must show by clear and convincing evidence that this section or section 84-712.08 exempts the records from disclosure. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      The investigatory record exception does not apply to protect material compiled ancillary to an agency's routine administrative functions or oversight activities. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Under subdivision (5) of this section, a public body can withhold from the public records of its investigation into an employee's conduct only if the investigation focuses on specifically alleged illegal acts. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      Under subdivision (5) of this section, a public record is an investigatory record where (1) the activity giving rise to the document sought is related to the duty of investigation or examination with which the public body is charged and (2) the relationship between the investigation or examination and that public body's duty to investigate or examine supports a colorable claim of rationality. This two-part test provides a deferential burden-of-proof rule for a public body performing an investigation or examination with which it is charged. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      A public record is an investigatory record under this section where (1) the activity giving rise to the document sought is related to the duty of investigation or examination with which the public body is charged and (2) the relationship between the investigation or examination and that public body's duty to investigate or examine supports a colorable claim of rationality. When an inquiry by an administrative agency departs from the routine and focuses with special intensity on a particular party, an investigation is underway for purposes of this section. Records that have been "disclosed" within the meaning of this section are only those records that a public body has, in its official capacity, already made available to the general public. State ex rel. Neb. Health Care Assn. v. Dept. of Health and Human Services Finance and Support, 255 Neb. 784, 587 N.W.2d 100 (1998).
      
      Court upheld Attorney General's refusal to disclose requested documents pursuant to subsections (4) and (5) of this section. State ex rel. Sileven v. Spire, 243 Neb. 451, 500 N.W.2d 179 (1993).
      
      
84-712.06. Public record; portion provided; when.
   Any reasonably segregable public portion of a record shall be provided to the public as a public record upon request after deletion of the portions which may be withheld.
Source:Laws 1979, LB 86, § 6. 


84-712.07. Public records; public access; equitable relief; attorney's fees; costs.
   The provisions of sections 84-712, 84-712.01, 84-712.03 to 84-712.09, and 84-1413 pertaining to the rights of citizens to access to public records may be enforced by equitable relief, whether or not any other remedy is also available. In any case in which the complainant seeking access has substantially prevailed, the court may assess against the public body which had denied access to their records, reasonable attorney fees and other litigation costs reasonably incurred by the complainant.
Source:Laws 1979, LB 86, § 7. 


84-712.08. Records; federal government; exception.
   If it is determined by any federal department or agency or other federal source of funds, services, or essential information, that any provision of sections 84-712, 84-712.01, 84-712.03 to 84-712.09, and 84-1413 would cause the denial of any funds, services, or essential information from the United States Government which would otherwise definitely be available to an agency of this state, such provision shall be suspended as to such agency, but only to the extent necessary to prevent denial of such funds, services, or essential information.
Source:Laws 1979, LB 86, § 8. 

Annotations
      Because the Legislature has expressed a strong public policy for disclosure, Nebraska courts must narrowly construe statutory exemptions shielding public records from disclosure. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      
      If a requesting party satisfies its prima facie claim for release of public records under section 84-712.03, the public body opposing disclosure must show by clear and convincing evidence that section 84-712.05 or this section exempts the records from disclosure. Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
      

84-712.09. Violation; penalty.
   Any official who shall violate the provisions of sections 84-712, 84-712.01, and 84-712.03 to 84-712.08 shall be subject to removal or impeachment and in addition shall be deemed guilty of a Class III misdemeanor.
Source:Laws 1979, LB 86, § 10. 




































                     Nebraska Administrative Procedure Act

84-901. Terms, defined.
   For purposes of the Administrative Procedure Act:
   (1) Agency shall mean each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulations, except the Adjutant General's office as provided in Chapter 55, the courts including the Nebraska Workers' Compensation Court, the Commission of Industrial Relations, the Legislature, and the Secretary of State with respect to the duties imposed by the act;
   (2) Rule or regulation shall mean any standard of general application adopted by an agency in accordance with the authority conferred by statute and includes, but is not limited to, the amendment or repeal of a rule or regulation. Rule or regulation shall not include (a) internal procedural documents which provide guidance to staff on agency organization and operations, lacking the force of law, and not relied upon to bind the public, (b) guidance documents as issued by an agency in accordance with section 84-901.03, and (c) forms and instructions developed by an agency. For purposes of the act, every standard which prescribes a penalty shall be presumed to have general applicability and any standard affecting private rights, private interests, or procedures available to the public is presumed to be relied upon to bind the public. Nothing in this section shall be interpreted to require an agency to adopt and promulgate rules and regulations when statute authorizes but does not require it;
   (3) Contested case shall mean a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing;
   (4) Ex parte communication shall mean an oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. Filing and notice of filing provided under subdivision (6)(d) of section 84-914 shall not be considered on the record and reasonable notice for purposes of this subdivision. Ex parte communication shall not include:
   (a) Communications which do not pertain to the merits of a contested case;
   (b) Communications required for the disposition of ex parte matters as authorized by law;
   (c) Communications in a ratemaking or rulemaking proceeding; and
   (d) Communications to which all parties have given consent;
   (5) Guidance document shall mean any statement developed by an agency which lacks the force of law but provides information or direction of general application to the public to interpret or implement statutes or such agency's rules or regulations. A guidance document is binding on an agency until amended by the agency. A guidance document shall not give rise to any legal right or duty or be treated as authority for any standard, requirement, or policy. Internal procedural documents which provide guidance to staff on agency organization and operations shall not be considered guidance documents; and
   (6) Hearing officer shall mean the person or persons conducting a hearing, contested case, or other proceeding pursuant to the act, whether designated as the presiding officer, administrative law judge, or some other title designation.
Source:Laws 1945, c. 255, § 1, p. 795; Laws 1947, c. 350, § 1, p. 1097; Laws 1951, c. 342, § 1, p. 1128; Laws 1959, c. 456, § 1, p. 1510; Laws 1974, LB 819, § 11; Laws 1978, LB 44, § 1; Laws 1981, LB 130, § 1; Laws 1986, LB 992, § 1; Laws 1987, LB 253, § 1; Laws 1994, LB 414, § 135; Laws 1994, LB 446, § 14; Laws 2016, LB867, § 4; Laws 2017, LB209, § 1. 

Annotations
      1. Contested case
2. Agency subject to act or not
3. Rules
4. Miscellaneous

1. Contested case
      Pursuant to subsection (3) of this section, a proceeding becomes a contested case when notice and a hearing are required. Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998).
      
      At a hearing before the Nebraska Liquor Control Commission on a contested case, the applicant is entitled to notice of the issues. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).
      
      The selection of a site for a public improvement was legislative in nature and was not a contested case. Stones v. Plattsmouth Airport Authority, 193 Neb. 552, 228 N.W.2d 129 (1975).
      
      Application of two public power districts to Nebraska Power Review Board for approval of an agreement limiting the areas in which and the customers to whom they would furnish electrical energy at wholesale, and opposition thereto by affected cities, was a contested case hereunder. City of Lincoln v. Nebraska P.P. Dist., 191 Neb. 556, 216 N.W.2d 722 (1974).
      
      The words contested case are defined by this section. School Dist. No. 8 v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).
      
2. Agency subject to act or not
      The Administrative Procedure Act does not apply to state agencies without authority to make rules and regulations affecting private rights, private interests, or procedures available to the public. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994).
      
      The State Board of Equalization and Assessment is a state agency so as to be subject to the Administrative Procedure Act. Pentzien, Inc. v. State, 227 Neb. 434, 418 N.W.2d 546 (1988).
      
      The Administrative Procedure Act and its appeal procedures are applicable only to agencies of the state, and not to administrative agencies of municipal government, i.e., the personnel board of the City of Omaha. Hammann v. City of Omaha, 227 Neb. 285, 417 N.W.2d 323 (1987); Harnett v. City of Omaha, 188 Neb. 449, 197 N.W.2d 375 (1972).
      
      The State Racing Commission is an administrative agency as defined in subsection (1) of this section. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).
      
      The Commission of Industrial Relations is an administrative agency within the purview of the Administrative Procedure Act. Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984).
      
      Appeals taken under the Administrative Procedure Act may only be taken from agencies of the state. The Omaha Housing Authority is not such an agency. Fisher v. Housing Auth. of City of Omaha, 214 Neb. 499, 334 N.W.2d 636 (1983).
      
      Court of Industrial Relations is an agency within provisions of this section. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).
      
      This case refers to a district court decision which held that a board of county commissioners is not a state agency under this and related sections. State ex rel. Southeast Rural Fire P. Dist. v. Grossman, 188 Neb. 424, 197 N.W.2d 398 (1972).
      
      State Board of Equalization and Assessment subject to this act. County of Gage v. State Board of Equalization & Assessment, 185 Neb. 749, 178 N.W.2d 759 (1970).
      
      The Nebraska Liquor Control Commission is an administrative agency as defined in this section. The Flamingo, Inc. v. Nebraska Liquor Control Commission, 185 Neb. 22, 173 N.W.2d 369 (1969).
      
      Provisions of this section disclose that act was intended to apply to the State Railway Commission. Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963).
      
      Because the University of Nebraska College of Law Student-Faculty Honor Committee and the College of Law dean are not authorized by law to make rules and regulations, they are not "agencies," and thus, their decisions are not subject to judicial review under the Administrative Procedure Act. Kerr v. Board of Regents, 15 Neb. App. 907, 739 N.W.2d 224 (2007).
      
3. Rules
      This section provides a definition of only the term "rule" and does not create any affirmative duties for the Public Service Commission to engage in rulemaking when interpreting a federal statute. In re Application No. C-1889, 264 Neb. 167, 647 N.W.2d 45 (2002).
      
      Subsection (2) of this section does not limit the definition of "private rights and interests" to those rights and interests that are unrelated to the workplace; if a rule or regulation prescribes a penalty, it is presumed to affect private rights and interests, regardless of whether the rights or interests at stake are those of an agency employee or some other individual. McAllister v. Nebraska Dept. of Corr. Servs., 253 Neb. 910, 573 N.W.2d 143 (1998).
      
      To be valid, an administrative rule or regulation must be properly promulgated, approved, and filed. Haven Home, Inc. v. Department of Pub. Welfare, 216 Neb. 731, 346 N.W.2d 225 (1984).
      
      This act requires Department of Banking to establish procedural rules providing for notice and hearing. First Fed. Sav. & Loan Assn. v. Department of Banking, 187 Neb. 562, 192 N.W.2d 736 (1971).
      
      Failure of State Board of Vocational Education to promulgate rules pursuant to this section immaterial in situation where hearing and notice not required. Chaloupka v. Area Vocational Technical School No. 2, 184 Neb. 196, 165 N.W.2d 719 (1969).
      
      Rules of railway commission applied to controversy between railroads and motor carriers. Ready Mix, Inc. v. Nebraska Railroads, 181 Neb. 697, 150 N.W.2d 275 (1967).
      
      Liquor Control Commission is an administrative agency required to file rules. Terry Carpenter, Inc. v. Nebraska Liquor Control Commission, 175 Neb. 26, 120 N.W.2d 374 (1963).
      
      Administrative agencies are required to adopt regulations which have the force and effect of a statute. Farmers Co-op. Elevator Assn. of Big Springs v. Strand, 382 F.2d 224 (8th Cir. 1967).
      
      Rates of carriers are rules which are required to be filed. Mogis v. Lyman-Richey Sand & Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950).
      
4. Miscellaneous
      The Nebraska Quality Jobs Board is not an "agency" subject to the Administrative Procedure Act, and an application to the Nebraska Quality Jobs Board is not a "contested case", within the meaning of this section. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002).
      
      In an action brought under the Administrative Procedure Act, it is the responsibility of the agency to provide the transcript in a timely fashion. The failure to do so subjects the agency to the disciplinary powers of the court. James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994).
      
      Neither the Administrative Procedure Act nor the regulations of the Department of Water Resources provide for any time limits on the rights of parties to intervene either as a matter of right or permissively. Nonetheless, the department as an agency of the State of Nebraska must have sufficient latitude in its operation in matters under its jurisdiction to exercise that jurisdiction fairly. Basin Elec. Power Co-op. v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985).
      
      It does not constitute an improper delegation of authority to permit matters of enforcement, such as the manner and the method, to be left to the reasonable discretion of administrative officers. State v. Sprague, 213 Neb. 581, 330 N.W.2d 739 (1983).
      
      Where there is a specific statute for an agency, setting out the method and scope of appeal, it should be applied instead of this act. Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974).
      
      There were practical difficulties which prevented a strict application of Administrative Procedure Act to proceedings before the State Board of Equalization and Assessment. County of Kimball v. State Board of Equalization & Assessment, 180 Neb. 482, 143 N.W.2d 893 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).
      
      Rate tariffs of telephone companies are excepted from requirements of filing in office of Secretary of State. City of Scottsbluff v. United Telephone Co. of the West, 171 Neb. 229, 106 N.W.2d 12 (1960).
      
      Under the Administrative Procedure Act, an appellate court may reverse, vacate, or modify a district court's judgment or final order for errors appearing on the record. Murray v. Neth, 17 Neb. App. 900, 773 N.W.2d 394 (2009).


84-901.01. Adoption and promulgation of rules and regulations; time; failure to adopt and promulgate; explanation; contents; hearing by standing committee of the Legislature; effect of legislative changes.
   (1) When legislation is enacted requiring the adoption and promulgation of rules and regulations by an agency, such agency shall adopt and promulgate such rules and regulations within one year after the public hearing required under subsection (2) of section 84-907. Such time shall not include the time necessary for submission of the rules and regulations to the Attorney General pursuant to section 84-905.01 or submission of the rules and regulations to the Governor pursuant to section 84-908. Any agency which does not adopt and promulgate such rules and regulations as required by this section shall, upon request, submit an explanation to the Executive Board of the Legislative Council and the standing committee of the Legislature which has subject matter jurisdiction over the issue involved in the legislation, stating the reasons why it has not adopted such rules and regulations as required by this section, the date by which the agency expects to adopt such rules and regulations, and any suggested statutory changes that may enable the agency to adopt such rules and regulations.
   (2) If such agency has not adopted and promulgated such rules and regulations within three years after the operative or effective date of such enacting legislation, the standing committee of the Legislature which has subject matter jurisdiction over the matters included in the legislation shall hold a public hearing to determine the reason that such rules and regulations have not been enacted.
   (3) The changes made to the Administrative Procedure Act by Laws 2011, LB617, shall not affect the validity or effectiveness of a rule or regulation adopted prior to May 25, 2011.
   (4) The changes made to this section by Laws 2013, LB242, shall apply to legislation enacted before, on, or after September 6, 2013.
Source:Laws 2011, LB617, § 1; Laws 2012, LB782, § 227; Laws 2013, LB222, § 42; Laws 2013, LB242, § 2; Laws 2018, LB751, § 1. 

Effective Date: July 19, 2018 


84-901.02. Legislative findings.
   The Legislature finds that:
   (1) The regulatory authority given to agencies has a significant impact on the people of the state;
   (2) When agencies create substantive standards by which Nebraskans are expected to abide, it is essential that those standards be adopted through the rules and regulations process to enable the public to be aware of the standards and have an opportunity to participate in the approval or repeal process;
   (3) Agencies should be encouraged to advise the public of current opinions, interpretations, approaches, and likely courses of action by means of guidance documents; and
   (4) Oversight of the regulatory authority over occupations and professions given to agencies is required to ensure respect for the fundamental right of an individual to pursue an occupation.
Source:Laws 2016, LB867, § 3; Laws 2018, LB299, § 17. 

Operative Date: July 1, 2019 

84-901.03. Agency; guidance document; issuance; availability; notice; request to revise or repeal; response; agency publish index.
   (1) Upon the issuance of a guidance document, an agency shall make such document available at one public location and on the agency's web site. The agency shall also publish on its web site an index summarizing the subject matter of all currently applicable rules and regulations and guidance documents. Such agency shall provide the index electronically to the Clerk of the Legislature by December 31 of each year.
   (2) An agency shall ensure that the first page of each guidance document includes the following notice: This guidance document is advisory in nature but is binding on an agency until amended by such agency. A guidance document does not include internal procedural documents that only affect the internal operations of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules and regulations made in accordance with the Administrative Procedure Act. If you believe that this guidance document imposes additional requirements or penalties on regulated parties, you may request a review of the document.
   (3) A person may request in writing that an agency revise or repeal a guidance document or convert a guidance document into a rule or regulation. No later than sixty calendar days after the agency receives such a request, the agency shall advise the requestor in writing of its decision to (a) revise or repeal the guidance document, (b) initiate a proceeding to consider a revision or repeal of a guidance document, (c) initiate the rulemaking or regulationmaking process to convert the guidance document into a rule or regulation, or (d) deny the request and state the reason for the denial.
   (4) All decisions made by an agency under this section shall be made available at one public location and on the agency's web site.
Source:Laws 2016, LB867, § 5; Laws 2017, LB209, § 2. 


84-901.04. Emergency rule or regulation; factors; procedure; duration; renewal; filing; publication.
   (1) If an agency determines that the adoption, amendment, or repeal of a rule or regulation is necessitated by an emergency situation, the agency may adopt, amend, or repeal a rule or regulation upon approval of the Governor. Such agency's request shall be submitted to the Governor in writing and include a justification as to why the emergency rule or regulation is necessary. Factors for the justification shall include:
   (a) Imminent peril to the public health, safety, or welfare; or
   (b) The unforeseen loss of federal funding for an agency program.
   (2) Any agency may use the emergency rule or regulation procedure as provided in this section. However, no agency shall use such procedure to avoid the consequences for failing to timely adopt and promulgate rules and regulations.
   (3) Rules and regulations adopted, amended, or repealed under this section shall be exempted from the notice and hearings requirements of section 84-907 and the review process required under section 84-905.01 and shall be valid upon approval of the Governor. An emergency rule or regulation shall remain in effect for a period of ninety calendar days and is renewable once for a period not to exceed ninety calendar days.
   (4) Any agency which adopts, amends, or repeals a rule or regulation under this section shall file such rule or regulation with the Secretary of State. The agency shall also publish such rule or regulation on the agency's web site.
Source:Laws 2016, LB867, § 6. 


84-902. Agency; rules and regulations; certified copies filed with Secretary of State; manner; open to public inspection.
   (1) Each agency shall file in the office of the Secretary of State a certified copy of the rules and regulations in force and effect in such agency. The Secretary of State shall keep a permanent file of all such rules and regulations. Such file shall be updated and kept current upon receipt of any rules and regulations adopted, amended, or repealed and filed with the Secretary of State as provided in the Administrative Procedure Act and shall be open to public inspection during regular business hours of his or her office. The Secretary of State, in order to maintain and keep such files current, shall be empowered to require new and amended rules and regulations to be filed as complete chapters or sections as directed by the Secretary of State.
   (2) Rules and regulations filed with the Secretary of State pursuant to the Administrative Procedure Act shall be filed in the manner and form prescribed by the Secretary of State including electronic filing if so directed by the Secretary of State. The Secretary of State shall issue instructions to all state agencies setting forth the format to be followed by all agencies in submitting rules and regulations to the Secretary of State. Such instructions shall provide for a uniform page size, a generally uniform and clear indexing system, and annotations including designation of enabling legislation and court or agency decisions interpreting the particular rule or regulation. For good cause shown, the Secretary of State may grant exceptions to the uniform page size requirement and the general indexing instructions for any agency.
Source:Laws 1945, c. 255, § 2, p. 795; Laws 1947, c. 350, § 2, p. 1098; Laws 1973, LB 134, § 1; Laws 1974, LB 604, § 1; Laws 1976, LB 615, § 1; Laws 1978, LB 44, § 8; Laws 1986, LB 992, § 2; Laws 1987, LB 253, § 2; Laws 2004, LB 915, § 1; Laws 2016, LB867, § 7. 

Annotations
      The procedural rules to be applied are those in effect at time of hearing or proceeding, not those in effect when the act or violation is charged to have taken place. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).
      
      Where penal provisions of statute are operative independently of rules, failure to file any rules does not bar prosecution. Scherer v. State, 168 Neb. 127, 95 N.W.2d 329 (1959).
      
      Rates of carriers must be filed with Secretary of State as a rule to be valid. Mogis v. Lyman-Richey Sand & Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950).
      

84-903. Agency; rules and regulations; publish.
   Each agency shall cause its rules and regulations to be published in such manner as the agency shall determine to bring, as far as practicable, the existence and scope of the rules and regulations to the attention of all persons affected thereby.
Source:Laws 1945, c. 255, § 3, p. 795; Laws 1987, LB 253, § 3. 


84-904. Repealed. Laws 1986, LB 992, § 11.


84-905. Agency; rules and regulations; availability required; price.
   Each agency shall make copies of the rules and regulations in force and effect for such agency available to all interested persons on request, at a price fixed to cover costs of publication and mailing, except that any such agency may furnish the same without charge if funds are available. No rule or regulation shall be effective unless copies thereof are available for distribution by the agency to persons requesting the same.
Source:Laws 1945, c. 255, § 5, p. 795; Laws 1947, c. 350, § 4, p. 1099; Laws 1967, c. 618, § 2, p. 2071; Laws 1969, c. 837, § 2, p. 3161; Laws 1973, LB 134, § 3; Laws 1987, LB 253, § 4. 


84-905.01. Rule or regulation; review by Attorney General.
   A copy of each amendment or rule or regulation to be adopted under the Administrative Procedure Act, prior to the date of filing with the Secretary of State, shall be submitted to the Attorney General for his or her consideration as to the statutory authority and constitutionality of such amendment or rule or regulation and his or her approval or disapproval thereof, including a determination as to whether or not the rule or regulation submitted is substantially different from the published proposed rule or regulation. If the amendment or rule or regulation to be filed is approved as to legality by the Attorney General, he or she shall so indicate with his or her stamp of approval which shall be dated and signed.
Source:Laws 1947, c. 350, § 5, p. 1099; Laws 1969, c. 837, § 3, p. 3161; Laws 1974, LB 604, § 3; Laws 1986, LB 992, § 3; Laws 1987, LB 253, § 5; Laws 1994, LB 446, § 17. 


84-906. Rule or regulation; when valid; presumption; limitation of action.
   (1) No rule or regulation of any agency shall be valid as against any person until five days after such rule or regulation has been filed with the Secretary of State except for rules and regulations adopted, amended, or repealed pursuant to section 84-901.04. No rule or regulation required under the Administrative Procedure Act to be filed with the Secretary of State shall remain valid as against any person until the certified copy of the rule or regulation has been so filed on the date designated and in the form prescribed by the Secretary of State. The filing of any rule or regulation shall give rise to a rebuttable presumption that it was duly and legally adopted.
   (2) A rule or regulation adopted after August 1, 1994, shall be invalid unless adopted in substantial compliance with the provisions of the act, except that inadvertent failure to mail a notice of the proposed rule or regulation to any person shall not invalidate a rule or regulation.
   (3) Any action to contest the validity of a rule or regulation on the grounds of its noncompliance with any provision of the act shall be commenced within four years after the effective date of the rule or regulation.
   (4) The changes made to the act by Laws 1994, LB 446, shall not affect the validity or effectiveness of a rule or regulation adopted prior to August 1, 1994, or noticed for hearing prior to such date.
   (5) The changes made to the act by Laws 2005, LB 373, shall not affect the validity or effectiveness of a rule or regulation adopted prior to October 1, 2005, or noticed for hearing prior to such date.
Source:Laws 1945, c. 255, § 6, p. 796; Laws 1947, c. 350, § 6, p. 1100; Laws 1973, LB 134, § 4;Laws 1986, LB 992, § 4; Laws 1987, LB 253, § 6; Laws 1994, LB 446, § 18; Laws 2005, LB 373, § 2; Laws 2016, LB867, § 8. 

Annotations
      To be valid, administrative rules and regulations must be filed with the Secretary of State, and it is irrelevant whether or not an individual has actually been prejudiced by the agency's failure to do so. McAllister v. Nebraska Dept. of Corr. Servs., 253 Neb. 910, 573 N.W.2d 143 (1998).
      
      The failure of the Department of Motor Vehicles to comply with this section's requirements regarding the filing of rules with the Secretary of State is a denial of due process. Gausman v. Department of Motor Vehicles, 246 Neb. 677, 522 N.W.2d 417 (1994).
      
      Rules of State Board of Education were not effective until filed. School Dist. No. 228 v. State Board of Education, 164 Neb. 148, 82 N.W.2d 8 (1957).
      
      Due process is denied where the rules and regulations governing the administrative license revocation procedure were not on file with the Secretary of State for at least 5 days at the time of the arrest. Dannehl v. Department of Motor Vehicles, 3 Neb. App. 492, 529 N.W.2d 100 (1995).
      
      Under former law, rates of carriers not filed with Secretary of State were invalid. Mogis v. Lyman-Richey Sand & Gravel Corp., 90 F.Supp. 251 (D. Neb. 1950).
      

84-906.01. Official rulemaking or regulationmaking record; agency maintain; contents.
   (1) An agency shall maintain an official rulemaking or regulationmaking record for each rule or regulation it adopts or proposes by publication of a notice. The record and materials incorporated by reference shall be available for public inspection and shall be maintained for at least four years after the effective date of the rule or regulation.
   (2) The record shall contain:
   (a) Copies of all publications with respect to the rule or regulation;
   (b) Copies of any portions of the public rulemaking or regulationmaking docket containing entries relating to the rule or regulation;
   (c) All written petitions, requests, submissions, and comments received by the agency and all other written materials prepared by or for the agency in connection with the proposal or adoption of the rule or regulation;
   (d) Any official transcript of oral presentations made in a proceeding about the proposed rule or regulation or, if not transcribed, any tape recording or stenographic record of those presentations, and any memorandum prepared by the hearing officer summarizing the contents of those presentations;
   (e) A copy of the rule or regulation and the concise explanatory statement filed with the Secretary of State;
   (f) All petitions for adoption of, exceptions to, amendments of, or repeal or suspension of, the rule or regulation;
   (g) A copy of any comments on the rule or regulation filed by a legislative committee; and
   (h) A description, including an estimated quantification, of the fiscal impact on state agencies, political subdivisions, and regulated persons.
   (3) Upon judicial review, the record required by this section shall constitute the official agency rulemaking or regulationmaking record with respect to a rule or regulation. Except as provided in section 84-907.04 or as otherwise required by law, the agency rulemaking or regulationmaking record need not constitute the exclusive basis for agency action on that rule or regulation or for judicial review thereof.
Source:Laws 1994, LB 446, § 19; Laws 2005, LB 373, § 3. 


84-906.02. Public comments; notice; agency; powers.
   In addition to seeking information by other methods and before publication of a notice under section 84-907, an agency is encouraged to and may solicit comments from the public on a subject matter of possible rule or regulation making by causing notice to be published in a newspaper of general circulation of the subject matter and indicating where, when, and how persons may comment.
Source:Laws 1994, LB 446, § 20. 


84-906.03. Secretary of State; duties.
   It shall be the duty of the Secretary of State:
   (1) To establish and cause to be compiled, indexed by subject, and published a codification system for all rules and regulations filed to be designated the Nebraska Administrative Code;
   (2) To cause the Nebraska Administrative Code to be computerized to facilitate agencies in revision of their rules and regulations and provide research capabilities; and
   (3) To post a current copy of existing rules and regulations as accepted by him or her as filed on his or her web site; to distribute a current copy of any existing rules and regulations as accepted by him or her as filed to all interested persons on request at a price fixed to cover costs of printing, handling, and mailing; and to distribute, on a regular basis, copies of any or all modifications or amendments to agency rules and regulations as accepted by him or her as filed to all interested persons on request at a price fixed to cover costs of printing, handling, and mailing.
Source:Laws 1973, LB 134, § 6; Laws 1975, LB 267, § 1; Laws 1980, LB 712, § 1; Laws 1981, LB 130, § 2; Laws 1982, LB 784, § 1; Laws 1986, LB 992, § 5; Laws 2016, LB867, § 9. 


84-906.04. Secretary of State; maintain docket for pending proceedings; contents.
   (1) The Secretary of State shall maintain a current public rulemaking or regulationmaking docket for each pending rulemaking or regulationmaking proceeding. A rulemaking or regulationmaking proceeding is pending from the time it is commenced by publication of a notice of proposed rule or regulation making to the time it is terminated by publication of a notice of termination or the rule or regulation becoming effective.
   (2) For each rulemaking or regulationmaking proceeding, the docket shall indicate:
   (a) The subject matter of the proposed rule or regulation;
   (b) The time, date, and location of the public hearing regarding the proposed rule or regulation;
   (c) The name and address of agency personnel with whom people may communicate regarding the proposed rule or regulation;
   (d) Where written comments on the proposed rule or regulation may be inspected;
   (e) The time during which written comments may be made;
   (f) Where the description of the fiscal impact may be inspected and obtained;
   (g) The current status of the proposed rule or regulation and any agency determinations with respect thereto;
   (h) Any known timetable for agency decisions or other action in the proceeding;
   (i) The date of the rule's or regulation's adoption;
   (j) The date of the rule's or regulation's filing, indexing, and publication; and
   (k) The operative date of the rule or regulation if such date is later than the effective date prescribed in sections 84-906 and 84-911.
Source:Laws 1994, LB 446, § 16; Laws 2016, LB867, § 10. 


84-906.05. Rule or regulation; judicial notice.
   (1) Every court of this state may take judicial notice of any rule or regulation that is signed by the Governor and filed with the Secretary of State pursuant to section 84-906.
   (2) The court may inform itself of such rules and regulations in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
Source:Laws 1974, LB 604, § 5; Laws 1986, LB 992, § 6; Laws 1987, LB 253, § 7; Laws 1999, LB 320, § 1. 

Annotations
      This court will take judicial notice of general rules and regulations established and published by Nebraska state agencies under authority of law. Raben v. Dittenber, 230 Neb. 822, 434 N.W.2d 11 (1989).
      

84-906.06. Repealed. Laws 1982, LB 784, § 2.


84-907. Rule or regulation; adoption; amendment; repeal; hearing; notice; procedure; exemption.
   (1) Except as provided in section 84-901.04, no rule or regulation shall be adopted, amended, or repealed by any agency except after public hearing on the question of adopting, amending, or repealing such rule or regulation. Notice of such hearing shall be given at least thirty days prior thereto to the Secretary of State and by publication in a newspaper having general circulation in the state. All such hearings shall be open to the public.
   (2) The public hearing on a rule or regulation that is required to be adopted, amended, or repealed based upon a legislative bill shall be held within twelve months after the effective or operative date of the legislative bill. If there is more than one applicable effective or operative date, the twelve-month period shall be calculated using the latest date. In addition to the requirements of section 84-906.01, draft copies or working copies of all rules and regulations to be adopted, amended, or repealed by any agency shall be available to the public in the office of the Secretary of State at the time of giving notice. The notice shall include: (a) A declaration of availability of such draft or work copies for public examination; (b) a short explanation of the purpose of the proposed rule or regulation or the reason for the amendment or repeal of the rule or regulation; and (c) a description, including an estimated quantification, of the fiscal impact on state agencies, political subdivisions, and persons being regulated or an explanation of where the description of the fiscal impact may be inspected and obtained. No person may challenge the validity of any rule or regulation, the adoption, amendment, or repeal of any rule or regulation, or any determination of the applicability of any rule or regulation on the basis of the explanation or description provided pursuant to subdivisions (b) and (c) of this subsection.
   (3) A change to an existing rule or regulation to (a) alter the style or form of such rule or regulation, (b) correct a technical error, or (c) alter a citation or reference to make such citation or reference consistent with state or federal law but which does not affect the substance of the rule or regulation is exempt from the requirements of this section. Such change shall not alter the rights or obligations of the public.
   (4) Agencies shall be exempt from promulgating security policies and procedures which, if made public, would create a substantial likelihood of endangering public safety or property.
Source:Laws 1953, c. 359, § 1, p. 1138; Laws 1977, LB 462, § 1; Laws 1978, LB 585, § 1; Laws 1980, LB 846, § 1; Laws 1986, LB 992, § 7; Laws 1987, LB 253, § 8; Laws 1987, LB 487, § 1; Laws 1994, LB 446, § 21; Laws 2005, LB 373, § 4; Laws 2011, LB617, § 2; Laws 2016, LB867, § 11. 

Annotations
      This section is in pari materia with section 84-901. City of Scottsbluff v. United Telephone Co. of the West, 171 Neb. 229, 106 N.W.2d 12 (1960).
      

84-907.01. Repealed. Laws 2016, LB867, § 21.


84-907.02. Repealed. Laws 2016, LB867, § 21.


84-907.03. Secretary of State Administration Cash Fund; created; use; investment.
   There is hereby created the Secretary of State Administration Cash Fund. The fund shall consist of revenue received to defray costs as authorized in sections 25-3308 and 84-901 to 84-908. The revenue shall be collected by the Secretary of State and remitted to the State Treasurer for credit to the fund. The fund shall be used to (1) offset expenses incurred as a result of sections 84-901 to 84-908, (2) administer the Nebraska Uniform Athlete Agents Act, and (3) administer the Nonrecourse Civil Litigation Act.
   Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.
Source:Laws 1994, LB 1194, § 8; Laws 1995, LB 7, § 148; Laws 2003, LB 228, § 15; Laws 2009, LB292, § 20; Laws 2010, LB1094, § 10; Laws 2017, LB280, § 4. 

Cross References
      Nebraska Capital Expansion Act, see section 72-1269.
      Nebraska State Funds Investment Act, see section 72-1260.
      Nebraska Uniform Athlete Agents Act, see section 48-2601.
      Nonrecourse Civil Litigation Act, see section 25-3301.


84-907.04. Proposed rule or regulation; explanatory statement; contents; use; agency; written report; contents.
   (1) At the time an agency finalizes a proposed rule or regulation and prior to submission to the Secretary of State, Attorney General, and Governor, the agency shall attach to the proposed rule or regulation a concise explanatory statement containing:
   (a) Its reasons for adopting the rule or regulation;
   (b) An indication of any change between the text of the proposed rule or regulation contained or referenced in the published notice and the text of the rule or regulation to be adopted, with the reasons for any change; and
   (c) When procedural rules differ from the model rules, the agency's reasons why relevant portions of the model rules were impracticable under the circumstances.
   (2) Only the reasons contained in the concise explanatory statement may be used by an agency as justifications for the adoption of the rule or regulation in any proceeding in which its validity is at issue.
   (3) The agency shall also attach to the proposed rule or regulation a written report that includes a summary of the testimony offered at the public hearing and that lists any specific issues or questions that were presented by individuals or representatives of organizations at the hearing or in written testimony submitted as part of the public hearing process. The report shall also include a response from the agency proposing the regulatory change to the questions and issues that were presented by individuals or representatives of organizations at the hearing or in written testimony submitted as part of the public hearing process. The written report shall also be submitted to the Executive Board of the Legislative Council. The chairperson of the executive board or committee staff member of the executive board shall refer each written report received pursuant to this subsection for review (a) to the chairperson of the standing committee of the Legislature which has subject matter jurisdiction over the issue involved in the rule or regulation or which has traditionally handled the issue and (b) if practicable, to the member of the Legislature who was the primary sponsor of a legislative bill that granted the agency the rulemaking authority if the member is still serving or, if the legislative bill was amended to include the rulemaking authority, to the member of the Legislature who was the primary sponsor of the amendment that granted rulemaking authority if the member is still serving.
Source:Laws 1994, LB 446, § 22; Laws 2014, LB719, § 1.


84-907.05. Proposed rule or regulation; substantially different from published notice; considerations; limitation on agency.
   (1) An agency may not adopt a rule or regulation that is substantially different from the proposed rule or regulation contained or referenced in the published notice. An agency may terminate a rulemaking or regulationmaking proceeding and commence a new rulemaking or regulationmaking proceeding for the purpose of adopting a substantially different rule or regulation.
   (2) In determining whether a rule or regulation is substantially different from the proposed rule or regulation contained or referenced in the published notice, the following shall be considered:
   (a) The extent to which all persons affected by the adopted rule or regulation should have had adequate notice from the published notice and the proposed rule or regulation contained or referenced in the published notice that their interests would be affected;
   (b) The extent to which the subject matter of the adopted rule or regulation or the issues determined by the rule or regulation are different from the subject matter or issues involved in the proposed rule or regulation contained or referenced in the published notice; and
   (c) The extent to which the effects of the adopted rule or regulation differ from the effects of the proposed rule or regulation contained or referenced in the published notice had it been adopted instead.
Source:Laws 1994, LB 446, § 23. 


84-907.06. Adoption, amendment, or repeal of rule or regulation; notice to Executive Board of the Legislative Council and Secretary of State.
   Whenever an agency proposes to adopt, amend, or repeal a rule or regulation, the agency shall (1) at least thirty days before the public hearing, when notice of a proposed rule or regulation is sent out, or (2) at the same time the agency requests approval from the Governor for an emergency rule or regulation under section 84-901.04, send to the Executive Board of the Legislative Council for purposes of section 84-907.07 if applicable, to the Executive Board of the Legislative Council to be forwarded to the relevant standing committee of the Legislature for purposes of the Occupational Board Reform Act if applicable, and to the Secretary of State to be made available to the public by means which include, but are not limited to, publication on the Secretary of State's web site, if applicable, the following information: A copy of the hearing notice required by section 84-907; a draft copy of the rule or regulation; and the information provided to the Governor pursuant to section 84-907.09.
Source:Laws 1994, LB 446, § 24; Laws 2005, LB 373, § 5; Laws 2012, LB782, § 228; Laws 2013, LB222, § 43; Laws 2016, LB867, § 12; Laws 2017, LB464, § 1; Laws 2018, LB299, § 18. 

Operative Date: July 1, 2019 

Cross References
      Occupational Board Reform Act, see section 84-933.


84-907.07. Executive Board of the Legislative Council; standing committees of the Legislature; powers and duties.
   The chairperson of the Executive Board of the Legislative Council or committee staff member of the board shall refer materials received pursuant to section 84-907.06 for review (1) to the chairperson of the standing committee of the Legislature which has subject matter jurisdiction over the issue involved in the rule or regulation or which has traditionally handled the issue and (2) if practicable, to the member of the Legislature who was the primary sponsor of the legislative bill that granted the agency the rulemaking authority if the member is still serving or, if the legislative bill was amended to include the rulemaking authority, to the primary sponsor of the amendment granting rulemaking authority if the member is still serving. The committee or committee chairperson of such standing committee of the Legislature having subject matter jurisdiction may submit a written or oral statement at the public hearing on the rule or regulation or, if the Governor approves an emergency rule or regulation under section 84-901.04, may submit a written statement to the agency and to the Secretary of State to be entered in the records relating to the rule or regulation.
Source:Laws 1994, LB 446, § 25; Laws 2005, LB 373, § 6; Laws 2016, LB867, § 13. 


84-907.08. Petition to adopt a rule or regulation; form; procedure.
   Any person may petition an agency requesting the adoption of a rule or regulation. Each agency shall prescribe by rule or regulation the form of the petition and the procedure for its submission, consideration, and disposition. Within sixty days after submission of a petition, the agency shall (1) deny the petition in writing, stating its reasons therefor, (2) initiate rulemaking or regulationmaking proceedings in accordance with the Administrative Procedure Act, or (3) if otherwise lawful, adopt a rule or regulation.
Source:Laws 1994, LB 446, § 26. 


84-907.09. Adoption, amendment, or repeal of rule or regulation; provide information to Governor.
   Whenever an agency proposes to adopt, amend, or repeal a rule or regulation, (1) at least thirty days before the public hearing, when notice of a proposed rule or regulation is sent out, or (2) at the same time the agency requests approval from the Governor for an emergency rule or regulation under section 84-901.04, the agency shall provide to the Governor for review (a) a description of the proposed rule or regulation and the entity or entities it will impact, (b) an explanation of the necessity of the proposed rule or regulation, including the identification of the specific legislative bill if applicable, or the authorizing statute when there is no legislative bill applicable, (c) a statement that the proposed rule or regulation is consistent with legislative intent, (d) a statement indicating whether the proposed rule or regulation is the result of a state mandate on a local governmental subdivision and if the mandate is funded, (e) a statement indicating if the proposed rule or regulation is the result of a federal mandate on state government or on a local governmental subdivision and if the mandate is funded, (f) a description, including an estimated quantification, of the fiscal impact on state agencies, political subdivisions, and regulated persons, (g) a statement that the agency will solicit public comment on the proposed rule or regulation before the public hearing, and (h) a statement indicating whether or not the agency has utilized the negotiated rulemaking process as provided for in the Negotiated Rulemaking Act with respect to the proposed rule or regulation.
Source:Laws 2005, LB 373, § 1; Laws 2011, LB617, § 3; Laws 2016, LB867, § 14. 

Cross References
      Negotiated Rulemaking Act, see section 84-921.
      

84-907.10. Member of the Legislature; complaint; procedure.
   (1) If any member of the Legislature feels aggrieved by a rule or regulation or by the proposed adoption, amendment, or repeal of a rule or regulation pursuant to section 84-907.06 or believes that (a) a rule or regulation or the adoption, amendment, or repeal of a rule or regulation is in excess of the statutory authority or jurisdiction of the agency, is unconstitutional, is inconsistent with the legislative intent of the authorizing statute, or creates an undue burden in a manner that significantly outweighs its benefit to the public, (b) circumstances have changed since the passage of the statute which a rule or regulation implements, or (c) a rule or regulation or an amendment or repeal overlaps, duplicates, or conflicts with federal, state, or local laws, rules, regulations, or ordinances, the member may file a complaint with the Chairperson of the Executive Board of the Legislative Council. The complaint shall explain in detail the member's contentions.
   (2) The chairperson of the executive board or a committee staff member of the executive board shall refer the complaint to the chairperson of the standing committee of the Legislature which has subject matter jurisdiction over the issue involved in the rule or regulation or which has traditionally handled the issue and, if practicable, to the member of the Legislature who was the primary sponsor of the legislative bill that granted the agency the rulemaking authority if the member is still serving or, if the legislative bill was amended to include the rulemaking authority, to the primary sponsor of the amendment granting rulemaking authority if the member is still serving.
   (3) The standing committee and primary sponsor of the legislative bill or amendment granting rulemaking authority may consider the complaint and, if such committee or primary sponsor concludes that the complaint has merit, then such committee or primary sponsor may request a written response from the agency which shall include, but not be limited to (a) a description of the amendment or rule or regulation, (b) when applicable, a description of the legislative intent of the statute granting the agency rulemaking authority and a statement explaining how the rule or regulation or the adoption, amendment, or repeal of the rule or regulation is within the authority or jurisdiction of the agency, is constitutional, is consistent with legislative intent, or is not an undue burden, (c) if the description required in subdivision (b) of this subsection is inapplicable, an explanation as to why the rule or regulation or the adoption, amendment, or repeal is necessary, and (d) an explanation of the extent to which and how any public comment was taken into consideration by the agency with respect to the rule or regulation or the adoption, amendment, or repeal. The agency shall respond within sixty days of a request, and such response shall be a public record.
   (4) Nothing in this section shall be construed to prohibit the adoption or promulgation of the rule or regulation in accordance with other provisions of the Administrative Procedure Act.
Source:Laws 2005, LB 373, § 7; Laws 2014, LB719, § 2.


84-908. Rule or regulation; adoption; amendment; repeal; considerations; when effective; approval by Governor; filing.
   (1) Except as provided in section 84-901.04, no adoption, amendment, or repeal of any rule or regulation shall become effective until the same has been approved by the Governor and filed with the Secretary of State after a hearing has been set on such rule or regulation pursuant to section 84-907. When determining whether to approve the adoption, amendment, or repeal of any rule or regulation relating to an issue of unique interest to a specific geographic area, the Governor's considerations shall include, but not be limited to: (a) Whether adequate notice of hearing was provided in the geographic area affected by the rule or regulation. Adequate notice shall include, but not be limited to, the availability of copies of the rule or regulation at the time notice was given pursuant to section 84-907; and (b) whether reasonable and convenient opportunity for public comment was provided for the geographic area affected by the rule or regulation. If a public hearing was not held in the affected geographic area, reasons shall be provided by the agency to the Governor. Any rule or regulation properly adopted by any agency shall be filed with the Secretary of State.
   (2) Except as provided in section 84-901.04, no agency shall utilize, enforce, or attempt to enforce any rule or regulation or proposed rule or regulation unless the rule, regulation, or proposed rule or regulation has been approved by the Governor and filed with the Secretary of State after a hearing pursuant to section 84-907.
Source:Laws 1953, c. 359, § 2, p. 1138; Laws 1972, LB 373, § 1; Laws 1974, LB 604, § 4; Laws 1975, LB 316, § 1; Laws 1978, LB 44, § 10; Laws 1986, LB 992, § 10; Laws 1987, LB 253, § 10; Laws 1987, LB 189, § 1; Laws 2013, LB242, § 3; Laws 2016, LB867, § 15. 

Annotations
      Rate tariffs, and any rules of interpretation thereof, are excepted from requirements of filing with Secretary of State. City of Scottsbluff v. United Telephone Co. of the West, 171 Neb. 229, 106 N.W.2d 12 (1960).
      
84-908.01. Repealed. Laws 1986, LB 992, § 11.


84-908.02. Repealed. Laws 1986, LB 992, § 11.


84-908.03. Repealed. Laws 1986, LB 992, § 11.


84-908.04. Repealed. Laws 1986, LB 992, § 11.


84-908.05. Repealed. Laws 1986, LB 992, § 11.


84-909. Agency; rules and regulations governing procedure; adoption.
   In addition to other requirements imposed by law:
   (1) Each agency shall adopt rules and regulations governing the formal and informal procedures prescribed or authorized by the Administrative Procedure Act. Such rules and regulations shall include rules of practice before the agency together with forms and instructions; and
   (2) To assist interested persons dealing with it, each agency shall so far as deemed practicable supplement its rules and regulations with descriptive statements of its procedures.
Source:Laws 1959, c. 456, § 2, p. 1511; Laws 1980, LB 846, § 2; Laws 1987, LB 253, § 11; Laws 1994, LB 446, § 33. 

Annotations
      Neither the Administrative Procedure Act nor the regulations of the Department of Water Resources provide for any time limits on the rights of parties to intervene either as a matter of right or permissively. Nonetheless, the department as an agency of the State of Nebraska must have sufficient latitude in its operation in matters under its jurisdiction to exercise that jurisdiction fairly. Basin Elec. Power Co-op. v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985).
      
      This section only applicable to procedures which have not been specifically covered by statute. Weiner v. State Real Estate Commission, 184 Neb. 752, 171 N.W.2d 783 (1969).
      
      The provisions of Administrative Procedure Act may be considered with other legislation in determining whether due process of law has been afforded. School Dist. No. 8 v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).
      
      The 1959 amendment to the act prescribing rules for administrative agencies did not contain more than one subject in violation of the Constitution. Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963).
      

84-909.01. Model rules of procedure; Attorney General; agency; duties.
   In accordance with the rulemaking and regulationmaking requirements of the Administrative Procedure Act, the Attorney General shall prepare and promulgate model rules of procedure appropriate for use by as many agencies as possible and shall file the model rules with the Secretary of State. The model rules shall deal with all general functions and duties performed in common by several agencies. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under its circumstances. To the extent an agency adopts the model rules, it shall do so in accordance with the rulemaking and regulationmaking requirements of the act. Any agency adopting a rule of procedure that differs from the model rules shall include in the explanatory statement provided for in section 84-907.04 a finding stating the reasons why the relevant portions of the model rules were impracticable under the circumstances.
Source:Laws 1994, LB 446, § 15. 


84-910. Agency; notification to Legislative Performance Audit Committee; contents; format; notice to Executive Board of the Legislative Council.
   (1) On or before July 1 of each year, each agency shall notify the Legislative Performance Audit Committee of the status of all rules and regulations pending before the agency which are required by law and which have not been adopted and promulgated. If such rules and regulations have not been adopted and promulgated within the time required pursuant to section 84-901.01, the agency shall provide an explanation to the committee stating why the agency has not adopted and promulgated such rules and regulations. If an additional appropriation was made with respect to legislation enacted to provide funding for or additional staff to implement a program for which rules and regulations are required to be adopted, the notification shall include what the funding has been used for and what functions the staff have been performing while such rules and regulations are pending. The format of the notification shall be established by the committee and shall be updated periodically.
   (2) On or before July 1 of each year, each agency shall, for purposes of the Occupational Board Reform Act, notify the Executive Board of the Legislative Council of the status of all rules and regulations pending before the agency which have not been adopted and promulgated. The executive board shall forward any notification received pursuant to this subsection to the standing committee of the Legislature with jurisdiction over the rules and regulations.
Source:Laws 2011, LB617, § 4; Laws 2012, LB782, § 229; Laws 2013, LB222, § 44; Laws 2018, LB299, § 19; Laws 2018, LB751, § 2. 
Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB299, section 19, with LB751, section 2, to reflect all amendments.
Note: Changes made by LB751 became effective July 19, 2018. Changes made by LB299 became operative July 1, 2019.

Cross References
      Occupational Board Reform Act, see section 84-933.
      

84-911. Validity of rule or regulation; declaratory judgment; procedure.
   (1) The validity of any rule or regulation may be determined upon a petition for a declaratory judgment thereon addressed to the district court of Lancaster County if it appears that the rule or regulation or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the petitioner. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule or regulation in question.
   (2) The court shall declare the rule or regulation invalid if it finds that it violates constitutional provisions, exceeds the statutory authority of the agency, or was adopted without compliance with the statutory procedures. For purposes of this subsection, statutory procedures shall not include procedures provided under the Negotiated Rulemaking Act.
Source:Laws 1959, c. 456, § 4, p. 1511; Laws 1987, LB 253, § 13; Laws 1994, LB 446, § 34.

Cross References
      Negotiated Rulemaking Act, see section 84-921.
      
Annotations
      A taxpayer has standing to challenge a state official's failure to comply with a clear statutory duty to assess or collect taxes -- as distinguished from legitimate discretion to decide whether to tax. But the taxpayer must show that the official's unlawful failure to comply with a duty to tax would otherwise go unchallenged because no other potential party is better suited to bring the action. Under this section, a taxpayer has standing to challenge an agency's unlawful regulation that negates the agency's statutory duty to assess taxes. No other potential parties are better suited than a taxpayer to claim that a state agency or official has violated a statutory duty to assess taxes when the persons or entities directly and immediately affected by the alleged violation are beneficially, instead of adversely, affected. Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012).
      
      When this section is read consistently with the declaratory judgment statutes, the only limitations placed on the relief that a plaintiff can obtain in a declaratory judgment action under this section are the limitations imposed by sovereign immunity principles. Neither this section nor sovereign immunity bars injunctive relief in a declaratory judgment action under this section when such relief would not require state officials to expend public funds. Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012).
      
      This section provides a limited statutory waiver of sovereign immunity and confers subject matter jurisdiction for a declaratory judgment concerning the validity of a state agency's rule or regulation, but does not confer jurisdiction for declaratory relief concerning judicial interpretation of a statute. Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997).
      
      This section provides a limited statutory waiver of sovereign immunity and confers subject matter jurisdiction for a declaratory judgment concerning the validity of a state agency's rule or regulation. This section is limited to judicial determination of the validity of any rule or regulation of a state agency and does not confer jurisdiction for judicial resolution of a factual question pertaining to the merits of a controversy. Riley v. State, 244 Neb. 250, 506 N.W.2d 45 (1993).
      
      Under this section, which allows for a declaratory judgment on the validity of an administrative rule, such a ruling is discretionary with the court. A court may refuse to enter a declaratory judgment where it would not end or resolve the controversy. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).
      
      A court may refuse to enter a declaratory judgment on the validity of an administrative rule when the petition essentially presents a claim against the state for money. Millard School District v. State Department of Education, 202 Neb. 707, 277 N.W.2d 71 (1979).
      
      A prisoner is not entitled to a declaratory judgment under this section as to the validity of a regulation limiting the amount of property that can be possessed by an inmate, because a prisoner does not enjoy the unqualified right to possess property while in prison. Meis v. Houston, 19 Neb. App. 504, 808 N.W.2d 897 (2012).
      

84-912. Repealed. Laws 1994, LB 446, § 40.


84-912.01. Petition for declaratory order; issuance by agency; duties; effect.
   (1) Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order within the primary jurisdiction of the agency. An agency shall issue a declaratory order in response to a petition for that order unless the agency determines that issuance of the order under the circumstances would be contrary to a rule or regulation adopted in accordance with subsection (2) of this section. An agency may not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.
   (2) Each agency shall issue rules or regulations that provide for: (a) The form, contents, and filing of petitions for declaratory orders; (b) the procedural rights of persons in relation to the petitions; (c) the disposition of the petitions; and (d) notice to necessary parties for matters set for hearing or specified proceedings. The rules or regulations shall describe the classes of circumstances in which the agency will not issue a declaratory order and be consistent with the public interest and with the general policy of the Administrative Procedure Act to facilitate and encourage agency issuance of reliable advice.
   (3) Persons who qualify for intervention and file timely petitions for intervention according to agency rules and regulations may intervene in proceedings for declaratory orders.
   (4) Within thirty days after receipt of a petition for a declaratory order, an agency shall, in writing:
   (a) Issue an order or agree to issue a declaratory order by a specified time declaring the applicability of the statute, rule, regulation, or order in question to the specified circumstances;
   (b) Set the matter for specified proceedings; or
   (c) Decline to issue a declaratory order, stating the reasons for its action.
   (5) A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the petitioner and any other parties.
   (6) A declaratory order shall have the same status and binding effect as any other order issued in a contested case. A declaratory order shall contain the names of all parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusion.
   (7) If an agency has not issued a declaratory order within sixty days after receipt of a petition therefor, the petition shall be deemed to have been denied.
Source:Laws 1994, LB 446, § 27. 

Annotations
      This section did not require a hearing before the Department of Administrative Services to decide the issues raised by the petitioners, the petition for a declaratory order did not require the department to act in a quasi-judicial manner, and the proceeding was not a contested case under the Administrative Procedure Act. Kaplan v. McClurg, 271 Neb. 101, 710 N.W.2d 96 (2006).
      

84-912.02. Petition for intervention; hearing officer or designee; grant petition; conditions; powers and duties; order.
   (1) A hearing officer or designee shall grant a petition for intervention if:
   (a) The petition is submitted in writing to the hearing officer or designee, with copies mailed to all parties named in the hearing officer's notice of the hearing, at least five days before the hearing;
   (b) The petition states facts demonstrating that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and
   (c) The hearing officer or designee determines that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
   (2) The hearing officer or designee may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.
   (3) If a petitioner qualifies for intervention, the hearing officer or designee may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:
   (a) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;
   (b) Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and
   (c) Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.
   (4) The hearing officer or designee, at least twenty-four hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order. The hearing officer or designee may modify the order at any time, stating the reasons for the modification. The hearing officer or designee shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.
Source:Laws 1994, LB 446, § 28. 


84-912.03. Tax Equalization and Review Commission; exemption.
   Sections 84-912.01 and 84-913 to 84-919 do not apply to the Tax Equalization and Review Commission.
Source:Laws 1995, LB 490, § 190; Laws 2004, LB 973, § 68. 

Cross References
      Tax Equalization and Review Commission Act, see section 77-5001.


84-913. Contested cases; notice of hearing; record; transcript.
   In any contested case all parties shall be afforded an opportunity for hearing after reasonable notice. The notice shall state the time, place, and issues involved, but if, by reason of the nature of the proceeding, the issues cannot be fully stated in advance of the hearing or if subsequent amendment of the issues is necessary, they shall be fully stated as soon as practicable. Opportunity shall be afforded all parties to present evidence and argument with respect thereto. The agency shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe shorthand notes unless requested for purpose of rehearing, in which event the transcript and record shall be furnished by the agency upon request and tender of the cost of preparation. Informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order, or default. Each agency shall adopt appropriate rules and regulations for notice and hearing in contested cases.
Source:Laws 1959, c. 456, § 6, p. 1512; Laws 1969, c. 838, § 1, p. 3162; Laws 1987, LB 253, § 15.

Annotations
      Where the Nebraska Liquor Control Commission failed to provide the appellant with notice as required under this section and the commission's own regulations, the appellant was denied due process, and as a result of such denial, the commission's decision with regard to the appellant's liquor license did not conform to the law. Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004).
      
      Administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act, and as such, the Department of Revenue is not statutorily authorized to grant motions for summary judgment. Southeast Rur. Vol. Fire Dept. v. Neb. Dept. of Rev., 251 Neb. 852, 560 N.W.2d 436 (1997).
      
      On objection to application for liquor license, where hearing is required, the matter becomes a contested case under section 84-901(3), and notice to applicant of the issues is necessary. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).
      
      The procedural rules to be applied are those in effect at time of hearing or proceeding, not those in effect when the act or violation is charged to have taken place. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).
      
      Department of Banking required to establish procedural rules providing for notice and hearing. First Fed. Sav. & Loan Assn. v. Department of Banking, 187 Neb. 562, 192 N.W.2d 736 (1971).
      
      In contested case, common carriers are entitled to present argument. Ready Mix, Inc. v. Nebraska Railroads, 181 Neb. 697, 150 N.W.2d 275 (1967).
      
      In hearing before the Liquor Control Commission where no notice of hearing is required, this section would not be applicable. City of Lincoln v. Nebraska Liquor Control Commission, 181 Neb. 277, 147 N.W.2d 803 (1967).
      
      Notice of hearing in a contested case is required to state the issues involved. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).
      
      In contested case before administrative board, notice and hearing are required. School Dist. No. 8 v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).


84-913.01. Hearing officer; prehearing conference; procedure.
   (1) The hearing officer designated to conduct the hearing may determine, subject to the agency's rules and regulations, whether a prehearing conference will be conducted. If the conference is conducted:
   (a) The hearing officer shall promptly notify the agency of the determination that a prehearing conference will be conducted. The agency may assign another hearing officer for the prehearing conference; and
   (b) The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The agency shall give notice to other persons entitled to notice.
   (2) The notice shall include:
   (a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;
   (b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency;
   (c) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;
   (d) A statement of the time, place, and nature of the prehearing conference;
   (e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;
   (f) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference; and
   (g) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act.
   The notice may include any other matters that the hearing officer considers desirable to expedite the proceedings.
Source:Laws 1994, LB 446, § 29. 


84-913.02. Hearing officer; prehearing conference; powers and duties; orders.
   (1) The hearing officer shall conduct the prehearing conference, as may be appropriate, to deal with such matters as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.
   (2) If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
Source:Laws 1994, LB 446, § 30. 


84-913.03. Hearing officer; prehearing conference and hearing; how conducted.
   The hearing officer may conduct all or part of the prehearing conference and the hearing by telephone, television, or other electronic means if each participant in the conference or hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place. This section does not apply to a prehearing conference or a hearing held under sections 60-498.01 to 60-498.04.
Source:Laws 1994, LB 446, § 31; Laws 2003, LB 209, § 20.

Annotations
      Telephonic hearings under this section are permitted when a formal "rules of evidence" hearing is requested pursuant to section 84-914(1). Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998).
      
      Whether the hearing is conducted by videoconference is permissive and discretionary. Robbins v. Neth, 15 Neb. App. 67, 722 N.W.2d 76 (2006).
      
84-913.04. Proceedings; limitation on participation.
   (1) A person who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding except as provided in subsection (3) of this section.
   (2) A person who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as hearing officer or assist or advise a hearing officer in the same proceeding except as provided in subsection (3) of this section.
   (3) If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as, investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a hearing officer in the preparation of orders.
   (4) A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as hearing officer or assist or advise a hearing officer in the same proceeding.
   (5) A person may serve as hearing officer at successive stages of the same contested case.
Source:Laws 1994, LB 446, § 32.

Annotations
      The Legislature specifically barred only prosecutors, investigators, and advocates from participating as hearing officers in administrative hearings. City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002).
      
      In this section, the Legislature has barred only prosecutors, investigators, and advocates from participating as hearing officers, or assisting hearing officers, in administrative hearings. Saunders Cty. v. Metropolitan Utilities Dist.-A, 11 Neb. App. 138, 645 N.W.2d 805 (2002).
      

84-914. Contested cases; evidence; procedure; ex parte communications.
   In contested cases:
   (1) An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. An agency shall give effect to the rules of privilege recognized by law. Any party to a formal hearing before an agency, from which a decision may be appealed to the courts of this state, may request that the agency be bound by the rules of evidence applicable in district court by delivering to the agency at least three days prior to the holding of the hearing a written request therefor. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing. All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered;
   (2) The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may administer oaths and issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court;
   (3) All evidence including records and documents in the possession of the agency of which it desires to avail itself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference;
   (4) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence;
   (5) An agency may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within its specialized knowledge and the rules and regulations adopted and promulgated by such agency. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of material so noticed. Parties shall be afforded an opportunity to contest facts so noticed. The record shall contain a written record of everything officially noticed. An agency may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it; and
   (6)(a) No party in a contested case or other person outside the agency having an interest in the contested case shall make or knowingly cause to be made an ex parte communication to the hearing officer or to an agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
   (b) No hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the agency having an interest in the contested case.
   (c) No agency head or employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case.
   (d) The hearing officer or agency head or employee who is or may reasonably be expected to be involved in the decisionmaking process of the contested case who receives or who makes or knowingly causes to be made an ex parte communication set forth in subdivisions (6)(a) through (c) of this section shall file in the record of the contested case (i) all such written communications, (ii) memoranda stating the substance of all such oral communications, and (iii) all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing shall be made within two working days of the receipt or making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.
   (e) The prohibitions of subdivision (6) of this section shall apply beginning at the time notice for hearing is given. An agency may designate an earlier time, but such earlier time shall be required to be set forth in the agency's rules of procedure.
   (f) The prohibitions contained in subdivisions (6)(a) and (b) of this section shall not apply to ex parte communications to or from an elected official. However, the disclosure requirements contained in subdivision (6)(d) of this section shall apply to ex parte communications to or from an elected official.
Source:Laws 1959, c. 456, § 7, p. 1513; Laws 1967, c. 618, § 3, p. 2072; Laws 1987, LB 253, § 16; Laws 1994, LB 414, § 136; Laws 1994, LB 446, § 35.

Annotations
      1. Rules of evidence
2. Evidentiary and trial procedures
3. Judicial notice
4. Miscellaneous

1. Rules of evidence
      The "rules of evidence applicable in district court" are the Nebraska Evidence Rules codified in Chapter 27 of the Nebraska Revised Statutes. Kimball v. Nebraska Dept. of Motor Vehicles, 255 Neb. 430, 586 N.W.2d 439 (1998).
      
      The Board of Nursing is not bound by the law of evidence unless a party so requests. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).
      
      Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974).
      
      The Administrative Procedure Act controls the appeal of prison disciplinary cases, but not the conduct of an initial prison disciplinary hearing. An inmate is not entitled to the application of the rules of evidence at a prison disciplinary committee hearing. Dailey v. Nebraska Dept. of Corr. Servs., 6 Neb. App. 919, 578 N.W.2d 869 (1998).
      
2. Evidentiary and trial procedures
      Evidentiary and trial procedures herein govern proceeding before Nebraska Power Review Board on application for approval of agreement between public power districts limiting areas in which and customers to whom electrical energy would be furnished at wholesale. City of Lincoln v. Nebraska P.P. Dist., 191 Neb. 556, 216 N.W.2d 722 (1974).
      
      Section details evidentiary and trial procedures for all administrative agencies. Weiner v. State Real Estate Commission, 184 Neb. 752, 171 N.W.2d 783 (1969).
      
3. Judicial notice
      In a contested case, all evidence in possession of the agency, of which it desires to avail itself, shall be made a part of the record and applicant is also entitled to notice of any facts which will be judicially noticed by the commission. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).
      
      The Nebraska State Racing Commission could properly take judicial notice that the electrical device in possession of jockey was designed to increase or decrease the speed of a horse. Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).
      
4. Miscellaneous
      Pursuant to subsection (5) of this section, a district court, in its de novo review of a disciplinary adjudication by the Department of Health and Human Services, properly took into consideration the expert opinions of the Director of Health and Human Services because the director was not substituting his expert knowledge for evidence in the record of the hearing; rather, the director used his experience and knowledge in evaluating the facts in the record. Pursuant to subsection (5) of this section, notification of parties is required when an agency intends to take notice of facts within its specialized knowledge; however, notification of parties is not required when an agency merely utilizes its expertise in evaluating evidence presented to it. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).
      
      Policy behind this statute is to give full and fair warning of Public Service Commission's intention to take notice of a matter so as to avoid prejudice or surprise. In this case method of taking notice may have been technically improper; nonetheless, taking notice caused no unfair surprise or prejudice to the parties and therefore was permissible. In re Application of ATS Mobile Telephone, 213 Neb. 403, 330 N.W.2d 123 (1983).
      
      Presumed that Department of Banking offered only records or documents in its possession of which it desired to avail itself, and any not offered were not considered. Douglas County Bank v. Department of Banking, 187 Neb. 545, 192 N.W.2d 401 (1971).
      
      Study based on information compiled from unsworn statements and involving many judgment decisions wherein basic data used was not available at the time of hearing could not be used to sustain action of State Board of Equalization and Assessment. County of Sarpy v. State Board of Equalization & Assessment, 185 Neb. 760, 178 N.W.2d 765 (1970); County of Sioux v. State Board of Equalization & Assessment, 185 Neb. 741, 178 N.W.2d 754 (1970).
      
      An agency is required to make an official record containing all the factual information or evidence required to be determined after an agency hearing. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).
      
      Ex parte communications that the director of the Department of Motor Vehicles had with police officers who were potential witnesses at a motorist's administrative license revocation hearing did not violate the motorist's due process rights; neither officer was a party in the license revocation proceeding nor a person outside the Department of Motor Vehicles having an interest in the motorist's case. Walz v. Neth, 17 Neb. App. 891, 773 N.W.2d 387 (2009).
      

84-915. Contested cases; orders; findings of fact; conclusions of law; notification.
   Every decision and order adverse to a party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed upon request to each party or his or her attorney of record.
Source:Laws 1959, c. 456, § 8, p. 1513; Laws 1987, LB 253, § 17. 

Annotations
      1. Sufficiency 
2. Miscellaneous

1. Sufficiency
      In order to provide a clear basis for an order granting or denying an instream flow application, the Director of Water Resources is required to discuss each of the elements listed in section 46-2,115. However, the director is not required to include, as part of his public interest analysis, to discuss forgone uses. An order which does no more than state its ultimate conclusion -- "application granted" or "application denied" -- clearly fails to provide a sufficient basis for the order. An order which fails to make findings on each required element also fails to provide a sufficient basis for the order. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).
      
      Conclusions of law found sufficient when considered with findings of fact. Douglas County Bank v. Department of Banking, 187 Neb. 545, 192 N.W.2d 401 (1971).
      
      Findings of fact in order entered by Director of Motor Vehicles are sufficient if they consist of a concise statement of the conclusions upon each contested issue of fact. Doran v. Johns, 186 Neb. 321, 182 N.W.2d 900 (1971).
      
      Findings of fact must show validity of order; failure to make findings of fact and conclusions of law in implied consent proceeding caused order to be set aside on appeal. Prigge v. Johns, 184 Neb. 103, 165 N.W.2d 559 (1969).
      
      Every decision under this act must be in writing, and shall make findings of fact and conclusions of law. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).
      
      State Railway Commission is required in a final order to make findings of fact and conclusions of law. Yellow Cab Co. v. Nebraska State Railway Commission, 176 Neb. 711, 127 N.W.2d 211 (1964).
      
      Under this section, the State Railway Commission is required to make findings of fact and conclusions of law in cases before it. Yellow Cab Co. v. Nebraska State Railway Commission, 175 Neb. 150, 120 N.W.2d 922 (1963).
      
      Findings made by State Railway Commission were sufficient to comply with this section. Young v. Morgan Drive Away, Inc., 171 Neb. 784, 107 N.W.2d 752 (1961).
      
2. Miscellaneous
      Chapter 84, article 9, applies to agencies of state government, not to city zoning board of adjustment. South Maple Street Assn. v. Board of Adjustment, 194 Neb. 118, 230 N.W.2d 471 (1975).
      
      State Railway Commission may correct findings to comply with this section without giving notice of hearing. Petroleum Transp. Co. v. All Class I Rail Carriers, 173 Neb. 564, 114 N.W.2d 34 (1962).
      
      On appeal from order of State Railway Commission, time commenced to run from date of mailing of notice of order. Denver Chicago Transp. Co., Inc. v. Poulson, 172 Neb. 862, 112 N.W.2d 410 (1961).
      
      Order of railway commission that fails to make findings of ultimate facts is irregular and will be set aside upon appeal. Basin Truck Co. v. All Class I Rail Carriers, 172 Neb. 28, 108 N.W.2d 388 (1961).
      

84-915.01. Official record of contested cases; agency maintain; contents; use.
   (1) An agency shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.
   (2) The agency record shall consist only of:
   (a) Notices of all proceedings;
   (b) Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case;
   (c) The record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and
   (d) The final order.
   (3) Except as otherwise provided by law, the physical custody of the agency record shall be maintained by the agency. The agency shall permit the parties to inspect the agency record and obtain copies of the agency record.
   (4) Except as otherwise provided by law, the agency record shall constitute the exclusive basis for agency action in contested cases under the act and for judicial review thereof.
Source:Laws 1994, LB 446, § 36; Laws 2006, LB 1115, § 41.


84-916. Act; intent.
   The Administrative Procedure Act is intended to constitute an independent act establishing minimum administrative procedure for all agencies.
Source:Laws 1959, c. 456, § 10, p. 1514; Laws 1987, LB 253, § 18. 

Annotations
      The purpose of this act is to establish a minimum administrative procedure. County of Lancaster v. State Board of Equalization & Assessment, 180 Neb. 497, 143 N.W.2d 885 (1966); County of Brown v. State Board of Equalization & Assessment, 180 Neb. 487, 143 N.W.2d 896 (1966); County of Blaine v. State Board of Equalization & Assessment, 180 Neb. 471, 143 N.W.2d 880 (1966).
      

84-917. Contested case; appeal; right to cross-appeal; procedure.
   (1) Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review under the Administrative Procedure Act. Nothing in this section shall be deemed to prevent resort to other means of review, redress, or relief provided by law.
   (2)(a)(i) Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. All parties of record shall be made parties to the proceedings for review. If an agency's only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record. Summons shall be served within thirty days of the filing of the petition in the manner provided for service of a summons in section 25-510.02. If the agency whose decision is appealed from is not a party of record, the petitioner shall serve a copy of the petition and a request for preparation of the official record upon the agency within thirty days of the filing of the petition. The court, in its discretion, may permit other interested persons to intervene.
   (ii) The filing of a petition for review shall vest in a responding party of record the right to a cross-appeal against any other party of record. A respondent shall serve its cross-appeal within thirty days after being served with the summons and petition for review.
   (b) A petition for review shall set forth: (i) The name and mailing address of the petitioner; (ii) the name and mailing address of the agency whose action is at issue; (iii) identification of the final decision at issue together with a duplicate copy of the final decision; (iv) identification of the parties in the contested case that led to the final decision; (v) facts to demonstrate proper venue; (vi) the petitioner's reasons for believing that relief should be granted; and (vii) a request for relief, specifying the type and extent of the relief requested.
   (3) The filing of the petition or the service of summons upon such agency shall not stay enforcement of a decision. The agency may order a stay. The court may order a stay after notice of the application therefor to such agency and to all parties of record. If the agency has found that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety, or welfare, the court may not grant relief unless the court finds that: (a) The applicant is likely to prevail when the court finally disposes of the matter; (b) without relief, the applicant will suffer irreparable injuries; (c) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and (d) the threat to the public health, safety, or welfare relied on by the agency is not sufficiently serious to justify the agency's action in the circumstances. The court may require the party requesting such stay to give bond in such amount and conditioned as the court may direct.
   (4) Within thirty days after service of the petition or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the proceedings had before the agency. Such official record shall include: (a) Notice of all proceedings; (b) any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the agency pertaining to the contested case; (c) the transcribed record of the hearing before the agency, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the agency during the proceeding, and all proffers of proof and objections and rulings thereon; and (d) the final order appealed from. The agency shall charge the petitioner with the reasonable direct cost or require the petitioner to pay the cost for preparing the official record for transmittal to the court in all cases except when the petitioner is not required to pay a filing fee. The agency may require payment or bond prior to the transmittal of the record.
   (5)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the review shall be conducted by the court without a jury on the record of the agency, and review may not be obtained of any issue that was not raised before the agency unless such issue involves one of the grounds for reversal or modification enumerated in subdivision (6)(a) of this section. When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency.
   (b)(i) If the court determines that the interest of justice would be served by the resolution of any other issue not raised before the agency, the court may remand the case to the agency for further proceedings.
   (ii) The agency shall affirm, modify, or reverse its findings and decision in the case by reason of the additional proceedings and shall file the decision following remand with the reviewing court. The agency shall serve a copy of the decision following remand upon all parties to the district court proceedings. The agency decision following remand shall become final unless a petition for further review is filed with the reviewing court within thirty days after the decision following remand being filed with the district court. The party filing the petition for further review shall serve a copy of the petition for further review upon all parties to the district court proceeding in accordance with the rules of pleading in civil actions promulgated by the Supreme Court pursuant to section 25-801.01 within thirty days after the petition for further review is filed. Within thirty days after service of the petition for further review or within such further time as the court for good cause shown may allow, the agency shall prepare and transmit to the court a certified copy of the official record of the additional proceedings had before the agency following remand.
   (6)(a) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the agency decision is:
   (i) In violation of constitutional provisions;
   (ii) In excess of the statutory authority or jurisdiction of the agency;
   (iii) Made upon unlawful procedure;
   (iv) Affected by other error of law;
   (v) Unsupported by competent, material, and substantial evidence in view of the entire record as made on review; or
   (vi) Arbitrary or capricious.
   (b) When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the court may affirm, reverse, or modify the decision of the agency or remand the case for further proceedings.
   (7) The review provided by this section shall not be available in any case where other provisions of law prescribe the method of appeal.
Source:Laws 1963, c. 531, § 1, p. 1664; Laws 1969, c. 838, § 2, p. 3162; Laws 1983, LB 447, § 102; Laws 1987, LB 253, § 19; Laws 1988, LB 352, § 186; Laws 1989, LB 213, § 1; Laws 1997, LB 165, § 5; Laws 2006, LB 1115, § 42; Laws 2008, LB1014, § 69; Laws 2009, LB35, § 32.

Annotations
      1. Applicability of section
      2. Review by court
      3. Miscellaneous
      

1. Applicability of section
      An inmate's petition for the reclassification of custody level from medium custody to minimum custody did not involve a "contested case" and was thus not subject to judicial review under the Administrative Procedure Act. Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d 895 (2016).
      
      Sections 84-917 to 84-919 govern appeals from rulings of the State Racing Commission. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).
      
      This section covers appeal to district court by the children of a crime victim from a denial of their application to the Nebraska Crime Victim's Reparations Board. Lambert v. Nebraska Cr. Vict. Rep. Bd., 214 Neb. 817, 336 N.W.2d 320 (1983).
      
      Review of orders of the Department of Public Welfare is governed by the criteria of this section. Gosney v. Department of Public Welfare, 206 Neb. 137, 291 N.W.2d 708 (1980).
      
      The State Board of Education hearing appeals under section 79-1103.05 acts in a quasi-judicial capacity and, therefore either party may appeal its decision under this section or under section 25-1901. Richardson v. Board of Education, 206 Neb. 18, 290 N.W.2d 803 (1980).
      
      Section 71-1,132.34 provides a specific method of appeal to the district court for the Board of Nursing and whether this section affords an alternative method is not decided. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).
      
      This section governs appeal by licensee from order of suspension by the Nebraska Liquor Control Commission. Happy Hour, Inc. v. Nebraska Liquor Control Commission, 186 Neb. 533, 184 N.W.2d 630 (1971).
      
      This section governs proper venue of an appeal from a license suspension ordered by the Nebraska Liquor Control Commission. The Flamingo, Inc. v. Nebraska Liquor Control Commission, 185 Neb. 22, 173 N.W.2d 369 (1969).
      
      Judgments rendered by an administrative agency acting in a quasi-judicial capacity are not subject to collateral attack in a separate action in county court challenging the validity of the underlying claim, but must be properly appealed pursuant to this section. In re Guardianship of Gaube, 14 Neb. App. 259, 707 N.W.2d 16 (2005).
      
2. Review by court
      An issue that has not been presented in a petition for judicial review has not been properly preserved for consideration by the district court. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
      
      Subsection (5)(b)(i) of this section permits the district court to review only matters which were not properly raised in the proceedings before an administrative agency. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
      
      In accordance with subsection (5)(a) of this section, when reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court's statutory scope of review de novo on the record of the agency. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
      
      Under subsection (6)(b) of this section, a district court has discretion concerning the disposition of an appeal from an administrative agency. Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 272 Neb. 390, 722 N.W.2d 10 (2006).
      
      It constitutes plain error for a district court to conduct a review under subsection (6)(a) of this section where the proceedings for review of an administrative hearing are initiated after July 1, 1989. Zwygart v. State, 270 Neb. 41, 699 N.W.2d 362 (2005).
      
      An application to the Nebraska Quality Jobs Board is not a "contested case" requiring review pursuant to this section. Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002).
      
      Pursuant to subsection (5)(a) of this section, the standard of review that courts without a jury must apply to clearly contested cases that are quasi-judicial in nature filed on or after July 1, 1989, is de novo on the record of the agency. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).
      
      Subsection (3) of this section provides that upon the filing of a petition for review, an agency may order a stay or the court may order a stay. Such stay may only be granted, however, when the court finds that (1) the applicant is likely to prevail when the court finally disposes of the matter, (2) without relief, the appellant will suffer irreparable injuries, (3) the grant of relief to the applicant will not substantially harm other parties to the proceedings, and (4) the threat to the public health, safety, or welfare relied upon by the agency is not sufficiently serious to justify the agency's action in the circumstances. Under subsection (5)(a) of this section, when a petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency. Miller v. Horton, 253 Neb. 1009, 574 N.W.2d 112 (1998).
      
      Pursuant to subsection (5) of this section, the district court's review of a decision of the Department of Insurance is de novo on the record. Norwest Corp. v. State, Dept. of Insurance, 253 Neb. 574, 571 N.W.2d 628 (1997).
      
      Pursuant to subsection (5)(a) of this section, in reviewing a final decision of an administrative agency in a contested case under the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact which was not presented to the agency because the taking of such evidence would impermissibly expand the court's statutory scope of review "de novo on the record of the agency". Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997).
      
      On an appeal from an adverse decision of an administrative agency, subsection (2)(a) of this section requires that a summons be served within 30 days of the filing of a petition for review as a prerequisite to the exercise by the district court of its subject matter jurisdiction. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).
      
      Under subsection (2)(a) of this section, if the agency whose decision is appealed from is not a party of record, it is a jurisdictional prerequisite that the petitioner serve a copy of the petition and a request for preparation of the official record upon the agency within 30 days of the filing of the petition. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996).
      
      Pursuant to this section, a district court is required to conduct a true de novo review of agency determinations on the record of the agency. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).
      
      Where the proceedings for review of an administrative hearing are initiated in the district court after July 1, 1989, the review will be conducted by the district court "without a jury de novo on the record of the agency" as required by this section. Styskal v. Wright, 246 Neb. 513, 519 N.W.2d 543 (1994).
      
      Under subsection (5)(a) of this section, an appeal to the district court of a decision by the State Personnel Board is reviewed on the record of the agency if the petition was filed in district court before July 1, 1989. Nebraska Dept. of Correctional Servs. v. Hansen, 238 Neb. 233, 470 N.W.2d 170 (1991).
      
      In an appeal from an administrative agency taken under this section of the Administrative Procedure Act, the district court's review is limited to determining whether the agency's action is (1) in violation of constitutional provisions, (2) in excess of the statutory authority or jurisdiction of the agency, (3) made upon unlawful procedure, (4) affected by other errors of law, (5) unsupported by competent, material, and substantial evidence in view of the entire record as made on review, or (6) arbitrary or capricious; however, the Nebraska Supreme Court reviews the district court's decision de novo on the record made before the agency. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).
      
      Although the Supreme Court reviews an agency's decision under the Administrative Procedure Act de novo on the record, a district court's standard of review is prescribed by subsection (6) of this section. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).
      
      Under this section, where a judicial review is made of the decision of an administrative agency, the reviewing court is authorized to consider the validity of the agency's criterion in order to assess whether the decision was within the statutory authority or jurisdiction of the agency. Beatrice Manor v. Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985).
      
      Review under sections 84-917 to 84-919 by the Supreme Court is limited to a review of the record created before the administrative agency in question. Adams Central School Dist. v. Deist, 214 Neb. 307, 334 N.W.2d 775 (1983).
      
      The district court review of order of State Personnel Board is limited to record of agency. Therefore, objections to appellant's requests in district court for discovery were properly sustained. Devine v. Dept. of Public Institutions, 211 Neb. 113, 317 N.W.2d 783 (1982).
      
      In appeal from the Liquor Control Commission, the Supreme Court determines only whether findings of the commission are supported by substantial evidence and whether district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973).
      
      The power of courts to review the action of a professional board of examiners in its refusal to recommend reinstatement of a revoked license is not decided, but if such power exists, it is limited to a determination based on whether or not the board's action was arbitrary or capricious. Coil v. Department of Health, 189 Neb. 606, 204 N.W.2d 167 (1973).
      
      Review under the Administrative Procedure Act is on the record of the agency only. Harnett v. City of Omaha, 188 Neb. 449, 197 N.W.2d 375 (1972).
      
      An assignment of error concerning a witness's testimony and evidence was not considered on appeal, because the complaining party did not raise or discuss the issue in its petition for review filed with the district court. Nebraska Pub. Advocate v. Nebraska Pub. Serv. Comm., 19 Neb. App. 596, 815 N.W.2d 192 (2012).
      
      The district court lacked subject matter jurisdiction because the petitioner failed to timely include as a party defendant the Department of Correctional Services, a necessary party under the Administrative Procedure Act. Tlamka v. Parry, 16 Neb. App. 793, 751 N.W.2d 664 (2008).
      
      In a true de novo review, the district court's decision is to be made independently of the agency's prior disposition and the district court is not required to give deference to the findings of fact and the decision of the agency hearing officer. DeBoer v. Nebraska Dept. of Motor Vehicles, 16 Neb. App. 760, 751 N.W.2d 651 (2008).
      
      In an appeal under subsection (5)(a) of this section, the district court conducts a de novo review of the record of the agency. Clark v. Tyrrell, 16 Neb. App. 692, 750 N.W.2d 364 (2008).
      
      If petition for review filed pursuant to this section is not timely, district court does not have jurisdiction to consider merits and can properly dismiss petition. Roubal v. State, 14 Neb. App. 554, 710 N.W.2d 359 (2006).
      
      A district court conducting a review under subsection (5)(a) of this section cannot base a reversal of the agency decision under review on grounds not raised in the petition for review. Moore v. Nebraska Dept. of Corr. Servs. Appeals Bd., 8 Neb. App. 69, 589 N.W.2d 861 (1999).
      
      The filing of the petition and the service of summons pursuant to this section are the two actions necessary to establish the jurisdiction of the district court to review the final decision of an administrative agency. McLaughlin v. Jefferson Cty. Bd. of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997).
      
      Pursuant to subsection (2)(a) of this section, timely service of a request for the preparation of the official record upon the agency is mandatory to confer jurisdiction on the district court. Payne v. Nebraska Dept. of Corr. Servs., 3 Neb. App. 969, 536 N.W.2d 656 (1995).
      
      In order to perfect an appeal under the Administrative Procedure Act, the party instituting the proceedings for review must file a petition in the district court for the county where the action is taken within 30 days after the service of the final decision by the agency, and cause summons to be served within 30 days of the filing of the petition. Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 656 (1993).
      
3. Miscellaneous
      A party is "aggrieved" within the meaning of subsection (1) of this section if it has standing to invoke a court's jurisdiction -- that is, if it has a legal or equitable right, title, or interest in the subject matter of the controversy. Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).
      
      Any aggrieved party seeking judicial review of an administrative decision under the Administrative Procedure Act must file a petition within 30 days after service of that decision, pursuant to this section. The Administrative Procedure Act makes no mention of an extended or different deadline for filing a cross-petition in the district court. Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608 (2008).
      
      Where the Public Service Commission has the authority to set conditions on certifications, resolve disputes, investigate complaints, issue orders, and enforce orders, it is not a neutral factfinding body. In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005).
      
      Neither section 60-6,208 (transferred to section 60-498.04) nor subsection (2)(a) of this section provides that its jurisdictional provisions are exclusive. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).
      
      Subsection (5)(a) of this section does not violate the separation of powers doctrine, and Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976), is overruled insofar as it implies that this statute violates the separation of powers doctrine. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).
      
      For a district court to have jurisdiction over an administrative agency's decision, that decision must be final. Big John's Billiards, Inc. v. Balka, 254 Neb. 528, 577 N.W.2d 294 (1998).
      
      Subsection (5)(b) of this section does not empower a district court to retain jurisdiction over an action remanded by the court to an administrative agency for a new hearing. Concordia Teachers College v. Neb. Dept. of Labor, 252 Neb. 504, 563 N.W.2d 345 (1997).
      
      The phrase "county where the action is taken" in subsection (2)(a) of this section refers to the site of the first adjudicated hearing of a disputed claim. Essman v. Nebraska Law Enforcement Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997).
      
      The phrase "action taken," as used in subsection (2) of this section, is defined by the site of the first adjudicated hearing of a disputed claim. Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996).
      
      The filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the Administrative Procedure Act. The filing of the transcript is not jurisdictional. James v. Harvey, 246 Neb. 329, 518 N.W.2d 150 (1994).
      
      This section makes no provision for reconsideration of the State Racing Commission's final decision so as to toll the thirty-day appeal time within which appellants had the opportunity to avail themselves of a judicial challenge of the commission's decision. B.T. Energy Corp. v. Marcus, 222 Neb. 207, 382 N.W.2d 616 (1986).
      
      The Tax Commissioner is not a person aggrieved and therefore does not have the right to appeal a decision of the State Board of Equalization and Assessment. Karnes v. Wilkinson Mfg., 220 Neb. 150, 368 N.W.2d 788 (1985).
      
      Filing of a transcript, which is the duty of the state agency, is not jurisdictional for appeal under this section, and the appellant is not entitled to reversal of the agency decision merely because of the agency's failure to timely file a proper transcript, and the district court may order a supplemental transcript. Where appeals are taken under this section, the certified transcript as prepared by the administrative agency and transmitted to the court is considered to be before the court and need not be formally offered into evidence by either party. Maurer v. Weaver, 213 Neb. 157, 328 N.W.2d 747 (1982).
      
      An appeal from an order of the director of the Department of Motor Vehicles is commenced or perfected by filing a petition within thirty days of the service of the final decision of the director and causing a summons to issue on the petition and be served within six months of such filing. Making an administrative agency a party defendant in an appeal under the provisions of § 60-420 or subsection (2) of this section is not an action against the state within the meaning of § 24-319 et seq. so as to require service of summons on the Governor and Attorney General. Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d 615 (1982).
      
      On appeal from State Board of Education order that county board make tuition payments for Nebraska school children attending school in South Dakota, the district court having proper jurisdiction is the one in which the state board took the action in question; that court being Lancaster County District Court. Bd. of Ed. of Keya Paha County v. State Board of Education, 212 Neb. 448, 323 N.W.2d 89 (1982).
      
      If, after a district court review, an administrative agency's decision which had fallen into legal error is remanded to the agency, new evidence can be received by the agency if it is necessary, in the agency's judgment, to discharge its duty. Phelps County Savings Co. v. Dept. of Banking & Finance, 211 Neb. 683, 320 N.W.2d 99 (1982).
      
      This section, in 1978, did not provide a right of appeal from a declaratory ruling of an administrative agency issued pursuant to section 84-912, R.R.S.1943. But see 1979 amendment to section 84-912, which provides such appeal. Gretna Public School v. State Board of Education, 201 Neb. 769, 272 N.W.2d 268 (1978).
      
      Orders of the Department of Public Welfare made pursuant to section 68-1016, may be reviewed by petition in error as well as by appeal. Downer v. Ihms, 192 Neb. 594, 223 N.W.2d 148 (1974).
      
      Prior to hearing before Director of Banking, protestants requested that rules of evidence applicable to the district court be made binding and district court on appeal made findings in accordance with applicable statute and affirmed order of the director. Gateway Bank v. Department of Banking, 192 Neb. 109, 219 N.W.2d 211 (1974).
      
      Where errors assigned require review of evidence they cannot be considered on either appeal or error proceedings in absence of a bill of exceptions. Lanc v. Douglas County Welfare Administration, 189 Neb. 651, 204 N.W.2d 387 (1973).
      
      For district court to obtain jurisdiction under this section, petition must be filed and summonses must be issued during the appeal period. Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968).
      
      The Department of Banking and Finance is statutorily authorized to require payment for the costs of preparing the official record from the party seeking review of its decision prior to transmitting the record. JHK, Inc. v. Nebraska Dept. of Banking & Finance, 17 Neb. App. 186, 757 N.W.2d 515 (2008).
      
      Pursuant to subsection (2)(a) of this section, the phrase "county where the action is taken" is the site of the first adjudicated hearing of a disputed claim. Yelli v. Neth, 16 Neb. App. 639, 747 N.W.2d 459 (2008).
      
      The rebuttable presumption of validity regarding actions of administrative agencies which results in the burden of proof resting on the party challenging the agency's actions does not apply in cases involving the termination of the employment of a public employee. Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. App. 233, 591 N.W.2d 95 (1999).
      

84-918. District court decision; appeal.
   (1) An aggrieved party may secure a review of any judgment rendered or final order made by the district court under the Administrative Procedure Act by appeal to the Court of Appeals.
   (2) When the petition instituting proceedings for review was filed in the district court before July 1, 1989, the appeal shall be taken in the manner provided by law for appeals in civil cases and shall be heard de novo on the record.
   (3) When the petition instituting proceedings for review is filed in the district court on or after July 1, 1989, the appeal shall be taken in the manner provided by law for appeals in civil cases. The judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.
Source:Laws 1963, c. 531, § 2, p. 1665; Laws 1987, LB 253, § 20; Laws 1989, LB 213, § 2; Laws 1991, LB 732, § 158.

Annotations
      1. Appeal from district court
      2. Appeal from administrative agency
      3. Miscellaneous
      
1. Appeal from district court
      A judgment or final order rendered by a district court in a judicial review under the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. When reviewing such an order, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Parker v. State ex rel. Bruning, 276 Neb. 359, 753 N.W.2d 843 (2008).
      
      On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Inner Harbour Hospitals v. State, 251 Neb. 793, 559 N.W.2d 487 (1997).
      
      Appeals from a district court decision involving petitions filed on or after July 1, 1989, are reviewed for errors appearing on the record. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).
      
      Under subsection (2) of this section, the standard of review on appeal from a declaratory judgment action filed under the Administrative Procedure Act in the district court prior to July 1, 1989, is de novo on the record. Loewenstein v. State, 244 Neb. 82, 504 N.W.2d 800 (1993).
      
      An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (1993).
      
      Appeals from the district court under the Administrative Procedure Act to the Supreme Court are reviewed de novo on the record if the district court proceeding was commenced prior to July 1, 1989. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).
      
      Supreme Court reviews de novo on the record an appeal from the district court's review of a decision of the Nebraska Equal Opportunity Commission. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).
      
      On appeal of review by the district court of an order of the Nebraska Equal Opportunity Commission, the Supreme Court will not disturb the district court's findings if they are supported by substantial evidence. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).
      
      Where district court had only cold record before it, the rule pertaining to Supreme Court's consideration of the opportunity of the trial court in equity to observe the witnesses is inapplicable. C & L Co. v. Nebraska Liquor Control Commission, 190 Neb. 91, 206 N.W.2d 49 (1973).
      
      A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Boruch v. Nebraska Dept. of Health and Human Servs., 11 Neb. App. 713, 659 N.W.2d 848 (2003).
      
2. Appeal from administrative agency
      The appropriate standard of review for the Supreme Court in an appeal from an administrative agency's decision is found in this section, which prescribes a review of an agency's decision de novo on the record without the limitation imposed on the district court under former section 84-917(6)(e) and (6)(f). Golden Five v. Department of Soc. Serv., 229 Neb. 148, 425 N.W.2d 865 (1988).
      
      The Supreme Court's review of an administrative agency's decision is de novo on the record; as such, the court makes independent findings of fact without reference to those made by the agency whose action is being reviewed. Dieter v. State, 228 Neb. 368, 422 N.W.2d 560 (1988); Department of Health v. Grand Island Health Care, 223 Neb. 587, 391 N.W.2d 582 (1986).
      
      The Supreme Court reviews an administrative agency's decision de novo on the record. Department of Health v. Lutheran Hosp. & Homes Soc., 227 Neb. 116, 416 N.W.2d 222 (1987); Zybach v. State, 226 Neb. 396, 411 N.W.2d 627 (1987); City of Omaha v. Omaha Police Union Local 101, 222 Neb. 197, 382 N.W.2d 613 (1986).
      
      The Supreme Court's review of an agency's decision under the Administrative Procedure Act is de novo on the record. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985).
      
      In appeal from the Liquor Control Commission, the Supreme Court determines only whether findings of the commission are supported by substantial evidence and whether district court applied the proper statutory criteria. The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973).
      
3. Miscellaneous
      In conducting its de novo review under the provisions of this section, the Nebraska Supreme Court is required to make independent findings of fact without reference to those made by the tribunal from which the appeal was taken. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).
      


84-919. Act; exclusive means of judicial review.
   Except as otherwise provided by law, the Administrative Procedure Act establishes the exclusive means of judicial review of a final decision of any agency in a contested case.
Source:Laws 1963, c. 531, § 3, p. 1666; Laws 1987, LB 253, § 21; Laws 1988, LB 352, § 187. 


84-919.01. Negotiated Rulemaking Act; use by agency.
   Prior to the formal rulemaking procedure of section 84-907, agencies may use the procedures of the Negotiated Rulemaking Act to permit the direct participation of affected persons in the development of proposed rules and regulations. Negotiated rulemaking may be used to resolve controversial issues prior to the formal rulemaking of the Administrative Procedure Act. To be effective, such proposed rules and regulations shall be adopted pursuant to the Administrative Procedure Act in the form proposed by the negotiated rulemaking committee or as amended by the agency.
Source:Laws 1994, LB 446, § 37. 

Cross References
      Negotiated Rulemaking Act, see section 84-921.
      

84-920. Act, how cited.
   Sections 84-901 to 84-920 and the Occupational Board Reform Act shall be known and may be cited as the Administrative Procedure Act.
Source:Laws 1987, LB 253, § 22; Laws 1994, LB 446, § 38; Laws 1995, LB 490, § 191; Laws 2005, LB 373, § 8; Laws 2011, LB617, § 5; Laws 2016, LB867, § 16; Laws 2018, LB299, § 20. 

Operative Date: July 1, 2019 

Cross References
      Occupational Board Reform Act, see section 84-933.








                           Negotiated Rulemaking Act

84-921. Act, how cited.
   Sections 84-921 to 84-932 shall be known and may be cited as the Negotiated Rulemaking Act.
Source:Laws 1994, LB 446, § 1. 


84-922. Purpose of act.
   The purpose of the Negotiated Rulemaking Act is to establish a framework for the conduct of negotiated rulemaking consistent with the Administrative Procedure Act. It is the intent of the Legislature that state agencies, whenever appropriate, use the negotiated rulemaking process to resolve controversial issues prior to the commencement of the formal rulemaking process of the Administrative Procedure Act. Negotiated rulemaking is not a substitute for the requirements of the Administrative Procedure Act but may be used as a supplemental procedure to permit the direct participation of affected interests in the development of new rules or the amendment or repeal of existing rules. A consensus agreement on a proposed rule reached by a negotiated rulemaking committee may be modified by an agency as a result of the subsequent formal rulemaking process. This section shall not be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process.
Source:Laws 1994, LB 446, § 2. 

Cross References
      Administrative Procedure Act, see section 84-920.


84-923. Terms, defined.
   For purposes of the Negotiated Rulemaking Act:
   (1) Agency shall have the same meaning as in section 84-901;
   (2) Consensus shall mean unanimous concurrence among the interests represented on a negotiated rulemaking committee unless the committee agrees upon another specified definition;
   (3) Convenor shall mean a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate for a particular rulemaking procedure;
   (4) Facilitator shall mean a person who impartially aids in the discussions and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule. A facilitator shall not have decisionmaking authority;
   (5) Interest shall mean, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner;
   (6) Negotiated rulemaking shall mean rulemaking through the use of a negotiated rulemaking committee;
   (7) Negotiated rulemaking committee or committee shall mean an advisory committee established to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule;
   (8) Person shall mean an individual, partnership, limited liability company, corporation, association, governmental subdivision, agency, or public or private organization of any character; and
   (9) Rule shall mean rule or regulation as defined in section 84-901.
Source:Laws 1994, LB 446, § 3. 

84-924. Negotiated rulemaking committee; establishment; agency director; use of negotiated rulemaking procedure; determination; considerations; convenor; duties.
   (1) An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the agency director determines that the use of the negotiated rulemaking procedure is in the public interest. In making that determination, the agency director shall consider whether:
   (a) There is a need for a rule;
   (b) There are a limited number of identifiable interests that will be significantly affected by the rule;
   (c) There is a reasonable likelihood that a committee can be convened with a balanced representation of persons who:
   (i) Can adequately represent the interests identified; and
   (ii) Are willing to negotiate in good faith to reach a consensus on the proposed rule;
   (d) There is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;
   (e) The negotiated rulemaking procedure will not unreasonably delay the notice of proposed formal rulemaking and the issuance of the final rule pursuant to the Administrative Procedure Act;
   (f) The agency has adequate resources and is willing to commit those resources, including technical assistance, to the committee; and
   (g) The agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee as the basis for the rule proposed by the agency in the formal rulemaking process of the Administrative Procedure Act.
   (2) An agency may use the services of a convenor to assist in making the determination of need pursuant to subsection (1) of this section and to assist the agency in:
   (a) Identifying persons who will be significantly affected by a proposed rule; and
   (b) Conducting discussions with affected persons on the issues of concern and ascertaining whether the establishment of a negotiated rulemaking committee is feasible and appropriate for the particular rulemaking.
   (3) The convenor shall report findings and make recommendations to the agency. Upon request of the agency, the convenor shall ascertain the names of persons who are willing and qualified to represent the interests that will be significantly affected by the proposed rule. The report and any recommendations of the convenor shall be made available to the public upon request.
Source:Laws 1994, LB 446, § 4. 

Cross References
      Administrative Procedure Act, see section 84-920.


84-925. Petition to use negotiated rulemaking committee; procedure; exception.
   (1) Except as provided in subsection (2) of this section, any person may petition an agency to request the use of a negotiated rulemaking committee in the development or revision of a rule. Each agency shall prescribe the form of the petition and the procedure for its submission, consideration, and disposition. Within sixty days after submission of a petition, the agency shall (a) deny the petition in writing stating its reasons therefor or (b) initiate the negotiated rulemaking procedure.
   (2) A person committed to or otherwise incarcerated in a Department of Correctional Services facility may not petition the Department of Correctional Services to request the use of a negotiated rulemaking committee.
Source:Laws 1994, LB 446, § 5. 


84-926. Negotiated rulemaking committee established; agency; duties; Secretary of State; duties.
   (1) If an agency decides to establish a negotiated rulemaking committee, the agency shall:
   (a) Give notice to the Secretary of State; and
   (b) Publish the notice in a newspaper having general circulation in the state and, as appropriate, in other newspapers and publications.
   (2) The notice shall include:
   (a) An announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule;
   (b) A description of the subject and scope of the rule to be developed and the issues to be considered;
   (c) A list of interests likely to be significantly affected by the proposed rule;
   (d) A list of the persons proposed to represent the affected interests and the agency;
   (e) A proposed schedule for completing the work of the committee; and
   (f) An explanation of how a person may apply for or nominate another person for membership on the committee.
   (3) The Secretary of State shall establish and maintain a list of subscribers who wish to receive notice of an agency's intent to establish a negotiated rulemaking committee and shall provide such notice to such subscribers at a cost to be assessed against each subscriber. The Secretary of State shall collect payments and make disbursements of such funds as may be necessary to carry out the notification required by this subsection.
   (4) The agency shall provide a period of at least thirty days for the submission of comments upon and applications for membership on a negotiated rulemaking committee.
Source:Laws 1994, LB 446, § 6. 


84-927. Negotiated rulemaking committee; establishment; notice of decision; agency support; termination.
   (1) If, after considering comments and applications for membership on the negotiated rulemaking committee submitted pursuant to section 84-926, the agency determines that a negotiated rulemaking committee can adequately represent the interests of the persons that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee.
   (2) If, after considering comments and applications submitted pursuant to section 84-926, the agency decides not to establish a negotiated rulemaking committee, the agency shall notify the persons who commented on or applied for membership on the negotiated rulemaking committee of the reasons for the decision. The agency shall also publish a notice of the decision not to establish a negotiated rulemaking committee in a newspaper having general circulation in the state and, as appropriate, in other newspapers and publications.
   (3) The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including technical assistance and support.
   (4) A negotiated rulemaking committee shall terminate upon the adoption of the final rule under consideration by the agency pursuant to the Administrative Procedure Act unless the agency, after consulting the committee, or the committee itself specifies an earlier termination date.
Source:Laws 1994, LB 446, § 7. 

Cross References
      Administrative Procedure Act, see section 84-920.


84-928. Negotiated rulemaking committee; membership; procedure.
   (1) A negotiated rulemaking committee may by consensus expand its membership, either by contacting and recruiting persons whose participation the committee believes is essential to the success of the negotiated rulemaking process or upon reviewing a petition submitted pursuant to subsection (2) of this section.
   (2) Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person on a negotiated rulemaking committee may petition for or nominate another person for membership on the negotiated rulemaking committee. Each petition or nomination shall be submitted to the negotiated rulemaking committee and shall include:
   (a) The name of the petitioner or nominee and a description of the interests the person represents;
   (b) Evidence that the petitioner or nominee is authorized to represent parties related to the interests the person proposes to represent;
   (c) A written commitment that the petitioner or nominee will actively participate in good faith in the development of the rule under consideration; and
   (d) An explanation of reasons that the persons already on the negotiated rulemaking committee do not adequately represent the interests of the person submitting the petition or nomination.
   (3) Upon receiving a petition, a negotiated rulemaking committee shall decide by consensus at its next meeting whether or not to expand its membership.
Source:Laws 1994, LB 446, § 8. 


84-929. Negotiated rulemaking committee; powers and duties; consensus; procedure; report; contents.
   (1) A negotiated rulemaking committee shall consider the matter proposed by the agency for consideration and shall attempt to reach consensus concerning a proposed rule and any other matter the committee determines is relevant to the proposed rule.
   (2) The person representing the agency on a negotiated rulemaking committee shall participate in the deliberations of the committee with the same rights and responsibilities of other members of the committee and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
   (3) A negotiated rulemaking committee may adopt procedures or ground rules for the operation of the committee.
   (4) If a negotiated rulemaking committee achieves consensus on a proposed rule at the conclusion of the negotiations, the committee shall transmit to the agency that established the committee a report containing the proposed rule.
   (5) If a negotiated rulemaking committee does not reach a consensus on the proposed rule, the committee shall transmit to the agency a report specifying areas in which the committee reached consensus and the issues that remain unresolved. The committee may include in the report any other information, recommendations, or materials that the committee considers appropriate. Any member of the committee may include as an addendum to the report additional information, recommendations, or materials.
Source:Laws 1994, LB 446, § 9. 


84-930. Facilitator; selection; duties.
   (1) An agency may nominate a person to serve as a facilitator for the negotiations of the negotiated rulemaking committee, subject to the approval of the committee by consensus. If the committee does not approve the agency's nomination for facilitator, the agency shall submit a substitute nomination. If the committee does not approve the substitute nomination of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or presiding officer for the committee.
   (2) A facilitator approved or selected by a negotiated rulemaking committee shall:
   (a) Preside at the meetings of the committee in an impartial manner;
   (b) Impartially assist the members of the committee in conducting discussions and negotiations and achieving consensus; and
   (c) Manage the keeping of minutes and records.
Source:Laws 1994, LB 446, § 10. 


84-931. Convenor or facilitator; contract authorized; state employee; disqualification; members of negotiated rulemaking committee; expenses; per diem; grants or gifts.
   (1) An agency may employ or enter into a contract for the services of an organization or individual to serve as a convenor or facilitator for a negotiated rulemaking committee or may use the services of a state employee to act as a convenor or facilitator for a committee.
   (2) An agency shall determine whether a person under consideration as a convenor or facilitator of a negotiated rulemaking committee has any financial or other interest that would preclude the person from serving in an impartial and independent manner. A person disqualified under this criterion shall be dropped from further consideration.
   (3) Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation. However, an agency may pay for a committee member's actual and necessary expenses incurred in serving on the committee as provided in sections 81-1174 to 81-1177 and a reasonable per diem rate of compensation if:
   (a) The committee member certifies a lack of adequate financial resources to participate in the committee; and
   (b) The agency determines that the committee member's participation in the committee is necessary to ensure an adequate representation of the interests of the members.
   (4) An agency may accept grants or gifts from any source to fund the negotiated rulemaking process if:
   (a) Information on the name of the person giving the grant or gift and the amount of the grant or gift is available to the public;
   (b) The grant or gift is given to and accepted by the agency without placing any condition on the membership of a negotiated rulemaking committee or the outcome of the negotiated rulemaking process; and
   (c) There is consensus among the members of the negotiated rulemaking committee that the acceptance of the grant or gift will not diminish the integrity of the negotiated rulemaking process.
Source:Laws 1994, LB 446, § 11. 


84-932. Agency action; judicial review; limitation; negotiated rule; judicial review; treatment.
   Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under the Negotiated Rulemaking Act shall not be subject to judicial review. Nothing in this section shall bar judicial review if such judicial review is otherwise provided by law. A rule which is the product of negotiated rulemaking prior to formal adoption pursuant to the Administrative Procedure Act and is later subject to judicial review shall not be accorded greater deference by a court than a rule which is the product of the rulemaking procedure of the Administrative Procedure Act alone.
Source:Laws 1994, LB 446, § 12. 

Cross References
      Administrative Procedure Act, see section 84-920.



