            TI%E     ATTORSEY       GENERAL
                        OF   TEX.i$S
                           March 19, 1987




Mr. Allen Eli Bell                   Opinion No.JM-649
Executive Director
Texas Air Control Board              Re: Applicability  of section 3.27 of
6330 by 290 East                     the Texas Clean Air Act to incinera-
Austin, Texas    78723               tots  used to dispose     of hazardous
                                     waste materials at specific  sites

Dear Mr. Bell:

      You ask whether the Comprehensive Environmental Response, Compen-
sation and Liability   Act of 1980, 42 U.S.C. 99601 et seq. (1982), or
subchapter H of the Texas Water Code preempts the Texas Air Control
Board's authority.to   require permits under section 3.27 of the Texas
Clean Air Act. artic,lo 4477-5, V.T.C.S.

       The Texas Clean Air Act makes the Air Control Board the state
agency responsible   for protecting    air quality in Texas by authorizing
the board to regulate     the release    of air pollutants.     See State V.
Associated   Metals 6 Minerals Corporation,      635 S.W.2d 4Or409      (Tex.
1982) ; Southwest Livestock and Trucking Company V. Texas Air Control
Board, 579 S.W.2d 549, 551 (Tex. Civ. App. - Tyler 1979, writ ref'd
n.r.e.1.    One of the primary methods available     to the board to affect
air quality    is the board's   permitting   authority.     See art. 4477-5,
93.27;   State v. Associated      Metals & Minerals     Corporation.  supra.
Section 3.27 provides,   in part:

               (a) Any person who plans to construct any new
          facility     or to engage in the modification       of any
          existing     facility    which may emit air contaminants
          into the air of this State shall apply for and
          obtain a construction        permit from the board before
          any actual work is begun on the facility.               The
          board      may issue      special   permits   to   certain
          facilities.       The board by rule may.exempt certain
          types      of facilities      from  the requirements     of
          Section 3.27 and Section 3.28 if it is found upon
          investigation        that such facilities    or types of
          facilities     will not make a significant       contribu-
          tion of air contaminants to the atmosphere.

V.T.C.S. art. 4477-5. 53.27(a).   You ask whether the board may apply
this provision  to incinerktors used to dispose of hazardous materials
at certain designated hazardous waste disposal  sites.



                                    p. 2948
Mr. Allen Eli     Bell - Page 2.     (m-649)




       The   Comprehensive         Environmental      Response,      Compensation      and
Liability    Act of 1980 (hereinafter         Superfund). 42 U.S.C. 59601 et seq.
(1982)s    provides      for    the cleanup        of designated      hazardous     waste
disposal    sites   through direct        federal    action and cooperative        action
between affected       states     and the federal        government.     See 42 U.S.C.
§9604 (1982).        Subchapter        R of    the Texas Water Code expressly
authorizes    the Texas Water Cowmission to enter into cooperative                agree-
ments with the federal             government to effect         remedial   actions     for
Superfund disposal       facilities.       See Tex. Water Code 526.303.          You ask
whether either      this federal        law7      this state law preempts the Air
Control Board’s authority            to require permits under section           3.27 at
Superfund hazardous waste disposal sites.

      The 99th Congress recently passed the “Superfund Amendments and
Reauthorization  Act of 1986.”   Pub. L. No. 99-499,    100 Stat.  1613
(1986) (amending 42 U.S.C. §9601 et seq.).    These amendments clarify
the concerns raised by your request.   Section 114(a) of Superfund, 42
U.S.C. 59614(a). provides that

            [nlothing    in this chapter shall be construed or
            interpreted    as preempting any State from imposing
            w     additional    liability   or requirements   with
            respect    to the release     of hazardous substances
            within such State.

This provision     remained unchanged in the 99th Congress.

     A provision   was added, however, to the cleanup standards         set
forth in the federal   act which preempts state     and local   permitting
authority with regard to the cleanup sites    covered by section    121 of
Superfund.    See 42 U.S.C.    59621. Section    121(e)(l)    of the 99th
Congress’ amendments provides:

                No Federal,   State, or local   permit shall   be
             required   for ths portion     of  any removal    or
             remedial action conducted entirely    onsite,  where
             such romedial action is selected    and carried out
             in compliance with this section.

Pub. L. No. 99-499,      1121(e)(l).      100 Stat.  1613. 1676 (1986).    This
section   expressly  preempts the state’s        authority  to require permits
for onsite    remedial actions       covered by section    121.  See Louisiana
Public Service Commission v. Federal Communications Co~ssion,               106
S.Ct.   1890, 1898 (1986) (basic preemption test).

      Nevertheless,     it should be noted that the requirement           that
remedial    actions   comply with the cleanup standards        set forth     in
section   121 mitigates    the effect   of the statement that permits shall
not be required.         Section   121(d)  requires  that remedial    actions
selected    by the federal       government shall    observe  certain    state
standards:


                                          p. 2949
Mr. Allen Eli Bell    - Page 3     (m-649)




              DEGREE OF CLEANUP -           (1) Remedial actions
          selected   under this section or otherwise required
          or agreed to by the President under this Act shall
          attain   a degree of cleanup of hazardous              sub-
          stances,    pollutants,     and contaminants      released
          into the environment and of control           of further
          release at a minimum which assures protection             of
          human health and the environment.          Such remedial
          actions   shall be relevant       and appropriate     under
          the circumstances       presented    by the release       or
          threatened release      of such substance,     pollutant,
          or contaminant.

              (2)(A)    With respect   to any hazardous   sub-
          stance. pollutant    or contaminant that will remain
          onsite.    if --

              (i)     any standard,  requirement,   criteria,   or
          limitation     under any Federal environmental      law,
          including,     but not limited    to,  the Toxic Sub-
          stances Control Act, the Safe Drinking Water Act,
          the Clean Air Act. the Clean Water Act, the Marine
          Protection,     Research and Sanctuaries   Act, or the
          Solid Waste Disposal Act; or

              (ii)     any promulgated        standard,    requirement,
          criteria,      or limitation      under. a State euviron-
          mental      or facility      siting      law that    Is more
          stringent     than any Federal standard, requirement,
          criteria,     or limitation,     including each such State
          standard,      requirement,      criteria.    or limitation
          contained      in a program approved,          authorized   or
          delegated      by the Administrator         under a statute
          cited     in subparagraph        (A),   and that has been
          identified      to the President        by the State in a
          timely wanner,

          is legally     applicable     to the hazardous substance
          or pollutant         or contaminant        concerned        or is
          relevant    and appropriate       under the circumstances
          of the release         or threatened        release       of such
          hazardous substance or pollutant              or contaminant.
          the remedial action selected          under section          104 or
          secured under section          106 shall require,           at the
          completion     of the remedial action,             a level       or
          standard of control        for such hazardous substance
          or pollutant     or contaminant which at least attains
          such     legally       applicable       or     relevant         and
          appropriate      standard,     requirement,      criteria,       or
          limitation.       Such remedial action        shall require a
          level    or standard       of    control     which at least



                                   p. 2950
Mr. Allen   Eli Bell   - Page 4      UM-649)




            attains      Maximum        Contaminant       Level     Goals.
            established   under the Safe Drinking Water Act and
            water quality     criteria     established    under section
            304 or 303 of the Clean Water Act, where such
            goals or criteria        are relevant       and appropriate
            under    the   circumstances        of    the   release    or
            threatened release.        (Emphasis added).

Superfund Amendments and Reauthorization              Act of 1986, Pub. L. No.
99-499, 100 Stat. 1613, 1673-74 (1986).             Cf. 1121(d)(2)(C)   (qualifies
which state requirements apply in certain           zer   circumstances).

       Section 121(e)(2)    as amended provides        the state   with a remedy in
lieu   of its permitting    authority:

                (2)   A State may enforce any Federal or State
            standard, requirement,       criteria,     or limitation      to
            which the remedial action is required to conform
            under this Act in the United States district              court
            for the district     in which the facility         is located.
            Any consent decree shall require             the parties      to
            attempt    expeditiously      to   resolve     disagreements
            concerning     implementation     of the remedial action
            informally    with the appropriate       Federal and State
            agencies.    .Where the parties        agree,     the consent
            decree may provide for administrative            enforcement.
            Bach consent decree shall also contain stipulated
            penalties     for violations       of the decree         in an
            amount not to exceed $25,000 per day, which may be
            enforced    by either    the President        or the State.
            Such stipulated     penalties     shall not be construed
            to impair or affect      the authority of the court to
            order compliance with the specific              terms of any
            such decree.      (Emphasis added).

Additionally,   section    121(f)  requires          the federal    government      to
provide for "substantial     and meaningful         involvement by each State       in
initiation,   development,    and selection          of   remedial actions     to   be
undertaken in that State."

      Consequently,     section  121(e)(l)    expressly  preempts the Texas Air
Control Board's authority       to require permits for incinerators        used to
dispose    of hazardous materials       onsite    at Superfund hazardous waste
disposal    sites covered by section 121. Section 121. however, provides
that the federal government must observe certain state standards.               The
Texas Air Control Board is therefore             not totally   precluded    by the
federal act from exercising       influence    over air quality at section      121
Superfund sites.       The federal act provides for state participation          in
the choice of remedial action standards and for the               enforcement of
state    requirements    with regard to such sites.           In light    of   this
conclusion,      it is unnecessary     to determine whether the Texas Water


                                      p. 2951
                                                                                         L.
Mr. Allen Eli Bell - Page 5        (JM-649)




Code also preempts the Air Control           Board's   permitting   authority   with
regard to these sites.

                                   SUMMARY

                  Section 121(e)(l)   of the Comprehensive Environ-
            mental Response, Compensation and Liability      Act of
            1980, 42 U.S.C. $9601 et seq.,      as amended by the
            Superfund Amendments and Reauthorization        Act of
            1986. Pub. L. No. 99-499,       100 Stat.   1613 (1986)
            (amending 42 U.S.C. $9601 et seq.),       preempts the
            Texas Air Control Board's permitting authority under
            section   3.27 of the Texas Clean Air Act,      article
            4477-S. V.T.C.S..     with regard to remedial action
            selected and carried out in compliance with section
            121 of the federal act.




                                                JIM     MATTOX
                                                Attorney General of Texas

JACK    HIGETOWER
First    Assistant Attorney   General

MARYKELLER
Executive Assistant,Attorney       General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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