Untitled Texas Attorney General Opinion ( 1987 )

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
p. 2952