                                   Tmm       ATTORNEY                    GECNE:~IPAL
                                                     OF      TEXAS
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                                                            July 29,    1975



           The Honorable James E. Peavy,     M. D.                             Opinion No.H-   653
           Director
           Texas Department   of Health Resources                              Re: Authority   of counties to re-
           Austin,  Texas 78756                                                gulate solid waste disposal opera-
                                                                               tions.
           The Honorable Joe Resweber
           Harris County Attorney
           Harris County Courthouse
           Houston, Texas   77002

                Dr. Peavy has requested our opinion concerning   the jurisdiction and proce-
           dures of the Department   of Health Resources and the various counties with re-
           gard to solid waste disposal.

                     Dr.       Peavy’s   questions   are:

           1)Towhat       extent, if any, may a county regulate solid waste disposal
                 operations within the extraterritorial limits of an incorporated city
                 or town?

           2)    May a county, through its Commissioners        Court, pursuant to Article
                 23518-1,   v. c. s., select and utilize a solid waste disposal site with-
                 out obtaining a permit from the State Health Department       pursuant to
                 Section 4(e) of Article 4477-7,   V. C. S., or regulation by the Depart-
                 ment as authorized throughout this statute?

           3)    a. If a county which has elected to exercise        solid waste manage-
                 ment powers,     including the issuance of [licenses]     in matters deal-
                 ing with solid waste disposal sites pursuant to Article 4477-7,         V. C. S.,
                 or Article 4477-8,     V. C. S. , or both, and considering    also that the
                 State Department     of Health exercises    its . . . permit powers under
                 Article 4477-7,    V. C. S., may the Department       require that applicants
                 choosin    to operate disposal sites in such a county acquire such a
                 [license gl from the county, so long as such county’s rules,        regula-
                 tions and procedures      are in accordance    with those utilized by the
                 Department?




                                                            p.   2864
The Honorable      James E. Peavy,          M.D.      - Page 2
The Honorable      Joe Resweber


     b. If such a county has adopted a [licensing]    system as afore-
     said and itself desires to operate a solid waste disposal   site,
     may the State Health Department    require that such a county obtain
     a permit from the state notwithstanding   the fact that the county
     has adopted its own rules and regulations   governing solid waste
     matters?

4)   May a county acting pursuant to authority granted in Section 5 of
     Article 4477-7,    V. C. S. s or Article 4477-8,    V. C. S., pass rules
     or regulations   or adopt procedures     which are less strigent than,
     or not otherwise in accordance      with, the Department’s     statutory
     requirements    under Article 4477-7,     V. C. S. , or the Department’s
     rules and regulations    promulgated    pursuant thereto?

     Mr. Resweber         has asked whether           a county must hold hearings      for the re-
newal of a license.

      Article 4477-7,  V. T. C. S., the Solid Waste Disposal Act, designates       the
Texas State Department      of Health (the department)   as the agency with juris-
diction over municipal solid waste,      and the Texas Water Quality Board (the
board) as the agency with jurisdiction     over industrial solid waste. Sec. 3.
See Attorney General Opinion H-64, (1973). Section 5 grants certain powers
Eounties,     as do articles   4477-8,  V. T. C. S., the County Solid Waste Con-
trol Act, and 2351g-1,    V. T.C.S..

        Your first question concerns the jurisdiction    of a county as to solid
waste    disposal operations within the extraterritorial    jurisdiction of a city or
town.

     Section 5(d) of article      4477-7,      V. T. C. S.,    the Solid WaSte    Disposal   Act,
provides in part:

               . . . [A] 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 incorporated   cities and towns.

Solid Waste     Control   Act,   article    4477-8,     V. T. C. S.,   provides   in part:

               . . . [A] county . . . may make regulations      for the
               areas of the county not within the territorial    limits
               or extraterritorial  jurisdiction of incorporated    ci-
               ties and towns to provide for governing and con-
               trolling solid waste collection,  handling,   storage
               and disposal.




                                            po 2865
The Honorable      James E. Peavy,       M.D.    - Page    3
The Honorable      Joe Resweber


Thus, the general regulatory        jurisdiction    of counties does not extend to areas
within the extraterritorial     jurisdiction    of cities and towns.     However,  a county
may exercise     those powers conferred in section 5(d) and (e) of article 4477-7
within this area, and may enforce the requirements             of article 4477-7 and the
rules and regulations     of the Department       of Health and the Texas Water Quality
Board.     Art. 4477-7,    sec. 5(f).    In addition, a county’s power to acquire dis-
posal sites by eminent domain may be exercised             within the extraterritorial
jurisdiction   of cities and towns.      V. T. C. S., art. 2351g-1,     and art. 4477-8,
sec. 4 and 5.

      Accordingly,      a county may acquire and designate disposal sites within the
extraterritorial     jurisdiction    of cities and towns.      Additionally,    within this area
a county may require disposal facilities              to obtain a license,   issue such licenses,
and enforce the requirements            of article 4477-7 land the rules and regulations         of
the Department      of Health and the Texas Water Quality Board.                However,    the
independent regulatory authority of a county within this area is limited to regu-
lations incidental to the exercise           of these powers,   that is, terms and conditions
upon which licenses        are issued; a county has no general regulatory            authority
within the extraterritorial       limits of cities and towns.        Of course,    the solid
waste disposal statutes encourage cooperation               between cities and counties.       -See
art. 4477-7,     sets.    5(c), (d)(l),    (e), (h).

     Dr. Peavy’s   second question is whether a county may select and operate                    a
solid waste disposal site without a permit from the Department   of Health or
regulation  by the Department.

      As previously      noted, article  2351g-1,.    V. T. C. S. , empowers     counties to
select and acquire sites for dumping and garbage disposal.               See also art.
4477-8,    sets.   4, 5. Additionally,    a county may license disposal sites, article
4477-7,    section 5(d), and “the owner or operator of the [licensed]             site does
not need to obtain a permit from the department or the board for the same site. ”
Sec. 5(d)(4).     In our view the use of the word “person ” in section 5(d)(2) coupled
with the inclusion of counties within its definition,         section 2( 1), indicates that
a county may license its own disposal site.           However,     with respect to municipal
solid waste,     no license may be issued,      renewed,    or extended “without the prior
approval . . . of the department        . . . . ” Sec. 5(d)(4).      Section 5(a) provides
that the powers granted to counties do “not preclude the department . . . from
exercising     any of the powers vested in the department . . . . ” Section 4(c)
empowers the department to promulgate             rules and regulations     “and establish mini-
mum standards of operation for all aspects of the management                 and control of the
solid waste over which it has jurisdiction,         ” and section 8(a) prohibits the viola-
tion of such regulations      and standards.     See also Sec. 3(a).      In addition,   section
18(a) of article 4477-8,      which grants counties general regulatory          powers over




                                          pe 2866
   -




The Honorable     James E. Peavy,       M.D.     - Page 4
The Honorable     Joe Resweber


areas not within the territorial     limits    or extraterritorial   jurisdiction   of cities
and towns, provides in part:

              regulations  shall not authorize any activity,
              method of operation,   or procedure which is
              prohibited by the Solid Waste Djsposal    Act
              or by the rules and regulations‘ of the State
              Department   of Health or the Texas Water
              Quality Board . . . .

      In OUT opinion these provisions   of articles  4477-7   and 4477-g    require that
counties exercise    their powers subject to the regulations      and orders of the de-
partment,   and no approval should be given to a license for a site which is not
in compliance   with such regulations   and standards,     regardless   of whether the
site is selected and operated by a county under articles        2351g-1   and 4477-8,
sections 4 and 5, or by~a.p+ivate person.      Accordingly,    a person or political
subdivision   operating a municipal solid waste disposal site licensed by a county
need not obtain a formal permit from the department,          but the approval of the
department must be obtained #prior to the issuance,        extension,   or renewal of a
license,  and all municipal solid waste disposal operations        must be in compli-
ance with departmental     regulations and standards.

      Dl-. Peavy’s  third question is whether the department may require appli-
cants to obtain a license from the appropriate   county rather than a permit from
the department,    and whether the department may require counties operating a
disposal site to obtain a permit from the department notwithstanding    the issuance
of a license by the appropriate   county.

      Section 4 of article 4477-7,     which authorizes     the department to issue per-
mits,   in no way requires     it to do so.  However,    once the department        establishes
a permit system,     certain mandatory provisions        of article 4477-7,      section 4(e)
are applicable.     The county judge receives      notice     of applications    for sites within
his county,   section 4(e)(l),    and & h&ring   is re+ired,      s&ktion’4(d)(4).-    In our
opinion section 4(e) requires the permit process          to be available to all persons,
and while the matter is not clear,       in our opinion these procedures        do not contem-
plate a refusal by the department to accept applications           from persons in certain
counties.    Accordingly,    the department may not require a person to obtain a
county license rather than a permit.         However,   we believe the department may
require persons to apply for a county license as a prerequisite             to application for
a permit.




                                         pe 2867
The Honorable    James E. Peavy,     M.D.     - Page   5
The Honorable    Joe Resweber


      Section 5(d)(4) clearly provides that a site licensed by a county need not
be the subject of a permit from the department.          Therefore, a county operating
a disposal site pursuant to a license may not be required to obtain a permit
from the department.      Under article 4477-7,    the department may refuse to
approve a license application,    but  may not  require  a permit in addition to a
license.    Of course,  the department may carefully     review such a site in its
approval    procedure   and may hold a hearing,    for a county may not be overly
rigorous   in the assessment   of its own application.

      Dr. Peavy’s  fourth question is whether a county may enact rules or re-
gulations or adopt procedures    which are less stringent than or not in accordance
with the department’s   statutory requirements  or its rules and regulations.   In
this regard,  Mr. Resweber asks whether a county must hold a hearing before
issuing,  extending or renewing a license.

      Article 4477-7    requires the department to follow certain procedures       in the
processing    of applications   for permits.   Sec. 4.   Certain procedures   are pro-
vided for counties operating a licensing      system.    Sec. 5. In our opinion, the
Legislature    intended the two sets of procedures     to be complementary    but to
operate independently,      for they are provided for in separate sections which deal
with the department and counties respectively.         Those procedures    required of the
department are not required of counties by article 4477-7.

     However,      as previously   noted, the department  “may adopt and promulgate
rules and regulations     consistent with the general intent and purposes of [the 1
Act, “articI’e’4477-7,    section 4(c), which purpose is:

             to safeguard the health, welfare,   and physical    property
             of the people through controlling the collection,     handling,
             storage,  and disposal of solid wastes.

      Since the procedural     aspects of a licensing  system have a strong influence
on the fulfillment   of this purpose,   in our opinion the department may require
reasonable    procedures    of counties in addition to those required by statute.  A
county may not. adopt procedures       or pass rules and regulations  which are incon-
sistent with a regulation or order of the department.        While as a general matter
a “less stringent” rule, regulation or procedure would be inconsistent        with one
of the department,     whether a regulation is “less stringent” will depend on the
facts and the particul.ar provisions     involved.

      The department is express1.y required to hold a hearing before issuing;      ex-,
tending or renewing a permit.    Art. 4477-7,   sec. 4(e)(4). However,the    Act does
not require counties to hold hearings in the licensing   renewal process,    and we
are aware of no regulation of the department which does so.      Accordin@y,     in




                                    pe 2868
  -




The Honorable   James E. Peavy,     M. D.   - Page   6
The Honorable   Joe Resweber



our opinion a county is not required by statute to hold hearings in its licensing
renewal procedure.    We do not consider whether due process    requirements
might necessitate  hearings in some instances.

                               SUMMARY

               The regulatory     authority of a county over solid
            waste disposal activities      within the extraterritorial
            jurisdiction    of an incorporated   city or town is limited
            to the power to require disposal s’ites tobe licensed;
            to issue,    extend, and renew such licenses;      and to pro-
            vide terms and conditions upon which such licenses
            are issued.      In addition, within this area a county may
            designate and acquire disposal sites and may enforce
            the requirements      of article 4477-7,   V. T. C. S., and the
            rules and regulations      of the Department    of Health and
            the Texas Water Quality Board.

                 A county exercising   licensing authority under section
            5 of article 4477-7,   V. T. C. S., may select and license a
            disposal site to be operated by the county.       While no
            license for a municipal solid waste disposal site may be
            issued without the prior approval of the Department        of
            Health, once a license is obtained, .a permit from the De-
            partment is not necessary.       Approval  should not be given
            of any site which will not comply      with statutory require-
            ments or departmental     rules and regulations.     Any mum-
            cipal solid waste disposal site licensed by a county must
            operate in compliance     with rules and regulations    of the
            department.

               With respect to counties exercising   licensing authori-
            ty under article 4477-7,   section 5, the Department   of
            Health may not require the owner or operator of a pro-
            posed disposal site to obtain a license from the appropri-
            ate county rather than a permit from the department.
            Application  for a license may be made a prerequisite     to
            a permit.

              A county operating a disposal site pursuant to a license
            may not be required to obtain a permit from the depart-
            ment.

               Procedures  required of the Department    of Health by
            article 4477-7 are not required of counties.     The De-
            partment of Health may require reasonable      procedures
.




    The Honorable   James E. Peavy,     M. D.   - Page     7
    The Honorable   Joe Resweber


                 of counties in addition to those contained in article
                 4477-7 which are expressly    applicable to counties.

                    Article 4477-7   does not require counties to hold
                 a hearing,  prior to the issuance,    extension, or re-
                 newal of a license,   and we are aware of no regula-
                 tion or order of the Department     of Health which
                 would require such hearings.

                                                    Xery   truly   yours,




                                                    JOHN L. HILL
                                           I/       Attorney General        of Texas




    Opinion   Committee


    jad:




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