The Honorable Joe Resweber

County Attorney Harris County Courthouse Houston, Texas 77002 Opinion No. H-931
Re: Effect of Department 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 solidwaste 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 solidwaste, 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 inpertinent part:

[AIcounty is empowered to require and issue licenses authorizing and governing the operation andmaintenance of sites used for the disposal of solidwaste in areas notwithin the territorial limits of incor oratedcitieT?h-Zl towns. (Emphasis-ax-?- ad e The county also has power tomake regulations for solid waste management, but unlike the licensing authority, this rule-making powermay not be exercised in the extraterritorial area:

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

[Alcounty, acting through its commissioners court, mav make resulations for the areas of.the-county notwithin the territorial limits or extraterritorial -isdiction of incorporated cities and towns toprovide for sovernins and controlling solidwaste collection, handling, storage, and disposal. (Emphasis added). V.T.C.S. art. 4477-8, 5 18(a).
You askwhether rule I-2promulgated by the Department in theMunicipal Solid Waste Management Regulations affects the power of Harris County to license landfills within the extraterritorial area:

I-l. Before exercising licensing authority formunicipal solidwaste disposal facilities,

government must establish and promulmes g& regulations which areconsistent with those established by theDepartment and must be approved by the Department. (Emphasis added). I-2. A county may not establish rules and regulations formunicipal solidwaste 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 thepower of Harris County to license sanitary landfills under article 4477-7, section 5(d). We believe that I-2merely 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 theymake rules and regulations does not increase the geographical area subject to their rule-making authority. Since we have concluded that rule I-2does not affect thepower of Harris County to license sanitary landfills, we do not answer the several questions you asked contingent on a finding that the rule didwithdraw 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.3891The Honorable Joe Resweber -page 3 (H-931)

I-7. A county shall hold apublic hearing P prior to issuance, amendment, extension,

revocation, or renewal of a county license. (Emphasisadded). Section 5(d)(3) authorizes the county toprescribe procedures for license renewal. However, the exercise of licensing authority by the county does not preclude the Department from exercising any powers vested in itsunder other provisions of theAct. V.T.C.S. art. 4477-7, § 5(a). Section 3of article 4477-l gives the Department of Health Resources "thepowers and duties specifically prescribed in thisAct 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 theAct is

to safeguard the health, welfare, and physical property of thepeople through controlling the collection, handling, storage, and disposal of solidwastes. V.T.C.S. art. 4477-7, § 1.
InAttorney General Opinion H-653 (19751,we recognized that theprocedural aspects of a licensing system strongly influence the fulfillment of this purpose, and said that the Department may require reasonable procedures of counties inaddition 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, andwe did not have before us a regulation requiring ahearing. Since the issuance of H-653, theDepartment has promulgated rule I-7. It imposes on the counties a reasonable procedure designed tohelp "safeguard the health, welfare, and physical property of the people" through themanagement ofmunicipal waste. We believe that the Department may adopt rule I-7as an exercise of itspower to adopt rules consistent with the purpose of theAct. See Gerst v. Oak Cliff Savings &Loan -- -- Ass'n, 432 S.W.2d 702 (Tex.Sup. 1968).
Inaddition, the Department has power to approve or disapprove the county's renewal of a license for amunicipal solidwaste 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. 3892The Honorable Joe Resweber -page 4 (H-931)

decisions by ensuring that theDepartment receives adequate information onwhich tobase its approval. See Southwestern Savings &LoanAss'n of Houston v. J.M. Falkner, 331

### s.w.zd

-- 917 (Tex.Sup. 1960);liittorneyGeneralOpinion H-64 (1973). It isour opinion that the Department may require counties to hold apublic hearing prior to renewal of a license.
SUMMARY Rule I-2promulgated by the Texas Department of Health Resources under articles 4477-J and 4477-8, V.T.C.S., does not affect thepower of counties to license landfills within the extraterritorial jurisdiction of~incorporatedcities and towns. The Department has authority topromulgate rule I-7which requires ahearing for renewal of a county license. Very-truly yours,

Attorney General of Texas
APPROVED:

DAVID M. KENDALL, First Assistant

Opinion Committee jwb

p.3893