The Honorable Joe Resweber         Opinion No. H- 931
County Attorney
Harris County Courthouse           Re: Effect of Department
Houston, Texas 77002               of Health Resources
                                   Municipal Solid Waste
                                   Management Regulations
                                   on county licensing of
                                   landfills.

Dear Mr. Resweber:

     You request our opinion concerning two regulations on
municipal solid waste management recently promulgated by the
Texas Department of Health Resources under article 4477-7,
V.T.C.S., the Solid Waste Disposal Act, which designates the
Department as the agency with jurisdiction over municipal
solid waste, and article 4477-8, V.T.C.S., the County Solid
Waste Control Act.
     Harris County licenses sanitary landfills within the
extraterritorial jurisdiction of cities and towns in the
county under the authority of article 4417-7, section 5(d),
V.T.C.S., which reads in pertinent part:

          [AI county is empowered to require and
          issue licenses authorizing and governing
          the operation and maintenance of sites
          used for the disposal of solid waste in areas
          not within the territorial limits of incor o-
          ratedcitieT?h-Zl towns.             ad e
                                    (Emphasis-ax-?-

The county also has power to make regulations for solid
waste management, but unlike the licensing authority, this
rule-making power may not be exercised in the extraterritorial
area:




                       p. 3890
The Honorable Joe Resweber - page 2   (H-931)



         [Al county, acting through its com-
         missioners court, mav make resulations
         for the areas of.the-county not within
         the territorial limits or extraterritorial
         -isdiction   of incorporated cities and
         towns to provide for sovernins and
         controlling solid waste collection,
         handling, storage, and disposal.   (Emphasis
         added). V.T.C.S. art. 4477-8, 5 18(a).

You ask whether rule I-2 promulgated by the Department in
the Municipal Solid Waste Management Regulations affects
the power of Harris County to license landfills within the
extraterritorial area:

          I-l. Before exercising licensing authority
          for municipal solid waste disposal facilities,
                   government must establish and promul-
          mes        g& regulations which areconsistent
          with those established by the Department and
          must be approved by the Department.   (Emphasis
          added).

          I-2. A county may not establish rules and
          regulations for municipal solid waste
          management within the extraterritorial or
          territorial jurisdiction of a city or town.

We do not believe that rule I-2, read in conjunction with
rule I-l, affects the power of Harris County to license
sanitary landfills under article 4477-7, section 5(d).
We believe that I-2 merely restates the limits of county
rule-making authority under article 4477-8, section 18(a).
It serves to remind the counties that the section I-l
requirement that they make rules and regulations does not
increase the geographical area subject to their rule-making
authority.  Since we have concluded that rule I-2 does not
affect the power of Harris County to license sanitary landfills,
we do not answer the several questions you asked contingent
on a finding that the rule did withdraw licensing authority.

     YOU also question whether the Department of Health
Resources has authority to require counties to hold a hearing
prior to renewing a landfill license. The Department has
promulgated the following regulation:



                        p. 3891
The Honorable Joe Resweber - page 3 (H-931)



          I-7. A county shall hold a public hearing
          prior to issuance, amendment, extension,
  P
          revocation, or renewal of a county license.
          (Emphasis added).

        Section 5(d)(3) authorizes the county to prescribe
procedures for license renewal. However, the exercise of
licensing authority by the county does not preclude the
Department from exercising any powers vested in it sunder
other provisions of the Act. V.T.C.S. art. 4477-7, § 5(a).
Section 3 of article 4477-l    gives the Department of Health
Resources "the powers and duties specifically prescribed
in this Act and all other powers necessary or convenient to
carry out its responsibilities."     The Department "may adopt
and promulgate rules and regulations consistent with the
general intent and purposes of [the] Act." V.T.C.S. art.
4477-7,    s 4(c).  The purpose of the Act is

          to safeguard the health, welfare, and
          physical property of the people through
          controlling the collection, handling,
          storage, and disposal of solid wastes.
          V.T.C.S.  art. 4477-7, § 1.

In Attorney General Opinion H-653 (19751, we recognized that
the procedural aspects of a licensing system strongly influence
the fulfillment of this purpose, and said that the Department
may require reasonable procedures of counties in addition
to those required by statute. In that opinion we determined
that the statute itself did not require counties to hold a
hearing for license renewal, and we did not have before us
a regulation requiring a hearing. Since the issuance of
H-653, the Department has promulgated rule I-7. It imposes
on the counties a reasonable procedure designed to help
"safeguard the health, welfare, and physical property of
the people" through the management of municipal waste.
We believe that the Department may adopt rule I-7 as an
exercise of its power to adopt rules consistent with the
purpose of the Act. See Gerst --v. Oak Cliff Savings --
                                                     & Loan
Ass'n,  432 S.W.2d 702 (Tex. Sup. 1968).

     In addition, the Department has power to approve or
disapprove the county's renewal of a license for a municipal
solid waste disposal site. V.T.C.S. art. 4477-7, § 5(d) (4);
see §§ 2(2), 3(a). Rule I-7 contributes to the effective     '
exercise of this supervisory authority over the county's




                         p.   3892
The Honorable Joe Resweber - page 4 (H-931)



decisions by ensuring that the Department receives adequate
information on which to base its approval. See Southwestern
        & Loan Ass'n of Houston v. J. M. Falkner, 331 s.w.zd
Savings --
917 (Tex. Sup. 1960);liittorney GeneralOpinion H-64 (1973).
It is our opinion that the Department may require counties
to hold a public hearing prior to renewal of a license.

                       SUMMARY
            Rule I-2 promulgated by the Texas
            Department of Health Resources under
            articles 4477-J and 4477-8,  V.T.C.S.,
            does not affect the power of counties to
            license landfills within the extraterritorial
            jurisdiction of ~incorporated cities and towns.
            The Department has authority to promulgate rule
            I-7 which requires a hearing for renewal of a
            county license.

                                  Very-truly yours,




                                  Attorney General of Texas

APPROVED:




DAVID M. KENDALL, First Assistant




Opinion Committee

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