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Unofficial Opinion 2009-1

Unofficial Opinion 2009-1

March 16, 2009
To: 

City Attorney

Re: 

The City of Snellville is preempted by the Georgia Air Quality Act from adopting a comprehensive ordinance that would impose air quality related regulatory requirements and emission limitations on the operation of a crematorium.

You have asked for my opinion regarding the ability of a municipality to regulate the air emissions generated by bio-waste incinerators operated by a crematorium.[1]   Your request states that this question arises out of the following facts:

[A] significant controversy has arisen in the City of Snellville as the result of the establishment of a crematory on a tract of land adjacent to a residential area.  In response to concerns of the community relative to potentially harmful emissions that might emanate from the crematory, it has been proposed that the City regulate the emission of certain harmful materials, particularly mercury, from bio-waste incinerators by limiting the lawful emission of such materials and requiring a system of monitoring such emissions by operators of bio-waste incinerators.

As Counsel for the City, you have already opined to the Mayor and City Council that “it is extremely likely that the Georgia [Air Quality] Act preempts any and all regulation of air quality and emissions standards enacted by local governments.”  In response to your opinion and to your request to this office, a member of the city council, who is also a practicing attorney, has taken the opposite position on the issue, concluding that the city is not preempted from regulating air emissions, and relying in part on a 1986 unofficial opinion from this office, 1986 Op. Att'y Gen. 86-22, in reaching that conclusion.

The 1986 unofficial opinion was issued in response to the question whether the Chatham County Commissioners may enact an ordinance regulating the emission of air pollutants within ChathamCounty and, if so, whether local emission standards could be more stringent than federal or state standards.

Based on the developed law of preemption at the time its issuance, the opinion concluded that “while local governments are not preempted from regulating in the area of air quality control, any ordinance in this area which contradicts or detracts from the Georgia Air Quality Act would be unconstitutional and void.”  1986 Op. Att'y Gen. 86-22, at 187.  In reaching that conclusion, however, the opinion noted that Georgia case law on the issue of preemption up to that time was “kaleidoscopic and hard to reconcile.”  Id. at 185.   In addition, the Georgia Constitution had at that time been recently amended with one of the changes having been made to the provision of the Constitution on which the doctrine of preemption is based.[2]    The opinion specifically noted that, in light of the lack of clarity in existing case law as well as the recent changes to the Constitution, “[i]t is virtually impossible to determine at this point what the courts will do” with the doctrine of preemption.  Id. at 186.

Current Georgia law on preemption

In the twenty-two years since Unofficial Opinion 86-22 was issued, the Georgia courts have provided some degree of clarity to the application of the preemption doctrine.  The first major ruling on preemption following the 1983 revision of the Constitution came in the case of Franklin County v. Fieldale Farms Corp., 270 Ga. 272 (1998).  That case dealt with a constitutional challenge by Fieldale Farms to an ordinance enacted by Franklin County for the purpose of regulating the disposal of sludge (semi-solid waste generated by wastewater treatment processes) by applying it to tracts of land in Franklin County.  Id. at 273.  The land application of sludge was already regulated by the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources pursuant to the Georgia Water Quality Control Act, O.C.G.A. §§ 12‑5‑20 to 12‑5‑53.  Id. at 275-76.  Fieldale Farms had applied for and obtained a permit from EPD for its FranklinCounty land application of sludge operations.  Id. at 273.

While the Fieldale Farms permit application was pending before EPD, FranklinCounty adopted a “Land Disposal Ordinance to regulate the disposal of industrial, hazardous, and biomedical waste.”  Id.  Fieldale Farms then applied to the county for a permit under the newly-enacted ordinance but its application was denied by the county.  Id.  Fieldale Farms subsequently sued the county and challenged the constitutionality of the ordinance on preemption grounds.  Id.  The trial court granted summary judgment in favor of Fieldale Farms and the Supreme Court affirmed on appeal.

In its opinion, the Supreme Court analyzed previous case law addressing the preemption doctrine and quoted the 1986 Opinion discussed above for the proposition that previous court decisions were “kaleidoscopic and hard to reconcile.”  Id. at 274 n.7.  The court noted that previous cases evaluated a preemption claim sometimes under a “conflict” preemption analysis (i.e., state and local authority being concurrent as long as the local law didn’t conflict with the state law) and at other times under a general or field preemption analysis (i.e., if the state occupies a specific field, local law is barred from it).  Id. at 274.  The court concluded that it was the intent of the drafters of the 1983 Constitution to reject the former view of preemption and adopt the latter view, while adding a specific exception to allow for concurrent authority in police powers matters if the legislature provided such authorization by general law.  Id. at 274-75.

The court then analyzed the facts of Fieldale Farms in accordance with that determination and found that the local law at issue was preempted by the Georgia Water Quality Control Act, a general law occupying the regulatory field of water quality control for which no express provision was made for concurrent local authority.  According to one commentator, the analysis established by the Supreme Court’s ruling in Fieldale Farms “will potentially invalidate far more local legislation than [a] ‘genuine conflict’ [analysis].”  Sentell, The Georgia Supreme Court and Local Government: Two Sheets to the Wind, 16 Ga. St. U.L. Rev. 361, 372 (1999).

In the decade following the Fieldale Farms decision, the uniformity clause has been applied to invalidate numerous local ordinances.  See City of Atlanta v. S.W.A.N. Consulting & Security Services, 274 Ga. 277 (2001)(city ordinance that required all employees of adult entertainment establishments licensed to sell alcoholic beverages be fingerprinted and permitted by the city preempted because such individuals were already regulated and required to obtain a state permit under a general state law, O.C.G.A. § 43‑38‑6); Hill v. Tschannen, 264 Ga. App. 288 (2003) (ordinance that required that smoke detectors in apartment buildings be continuously powered from an apartment’s internal electrical system preempted by general state law requiring that smoke detectors only needed to be battery powered); City of Buford v. Georgia Power Co., 276 Ga. 590 (2003)(ordinance restricting construction of electric power substations near residentially zoned property preempted because general law provided that the Georgia Public Service Commission, not local governments, had the authority to regulate the business activity of companies such as Georgia Power).

From the court decisions commencing with the Fieldale Farms case, it is apparent that a preemption analysis involves a sequence of inquiries.  Is there a general law that covers the same subject matter being addressed by the local ordinance?  If not, there is no preemption issue.  If such a general law exists, the next question posed is whether the legislature has allowed local law on the same subject by way of a general law.  If not, the local law is barred by the uniformity clause.  If there is general law authorization for concurrent local law, the final question is whether the local law conflicts with the general law.

Preemption analysis of the proposed Snellville ordinance

1.   Is there a general law that covers the same subject matter being addressed by the local ordinance?

Yes.  The proposed “City of Snellville Air Quality Control Ordinance” would establish a comprehensive regulatory scheme aimed at facilities engaged in “the operation of any incinerator of bodies, body parts, infectious and/or chemotherapeutic wastes within the City of Snellville.”  Proposed Ordinance, Art. I, Section 2.  The ordinance would require incinerator operators to submit “certifications” to the city that their facility “will not exceed the limits for contaminants specified within [the] ordinance.”  Art. III, Sec. 1(a).  Operators of such facilities would be required to continuously monitor for mercury and dioxins/furans emissions when operating their incinerator, “ensure that monitoring data is available in real-time to City computers in a format acceptable to the City,” comply with specific start-up procedures, comply with specific emission procedures, and allow the city to inspect the facility.  Art. III, Sec. 2.  The ordinance would also set specific limits for the emission of mercury and dioxins, provide for the adoption of other limits and standards, and require the use of “best available technology.”  Art. IV, Sec. 1-3.

The ordinance would establish a regulatory scheme virtually identical in nature to the comprehensive state-wide air quality and emission laws and regulations administered by the Georgia Environmental Protection Division (“EPD”) pursuant to its authority under the Georgia Air Quality Act, O.C.G.A. §§ 12‑9‑1 to 12‑9‑25.  Similar to the Georgia Water Quality Control Act involved in the Fieldale Farms case, the Georgia Air Quality Act confers on EPD the broad authority to regulate all aspects of air emissions to “preserve, protect, and improve air quality and to control emissions to prevent the significant deterioration of air quality and to attain and maintain ambient air quality standards so as to safeguard the public health, safety, and welfare consistent with providing for maximum employment and full industrial development of the state.”  O.C.G.A. § 12‑9‑2.  The laws and regulations administered by EPD address permitting requirements, start-up and shut-down procedures, monitoring, reporting, use of required technology, and a multitude of other aspects of air quality control.  See generally O.C.G.A. § 12‑9‑5 (“Powers and duties of Board of Natural Resources as to air quality generally”), O.C.G.A. § 12‑9‑6 (“Powers and duties of director as to air quality generally”), and Ga. Comp. R. & Regs. Chapter 391-3-1.

Consequently, the proposed city ordinance is clearly a local law in an area of regulation “for which provision has been made by an existing general law” and, thus, prohibited by the uniformity clause of the Georgia Constitution unless authorized by general law and not in conflict with existing law.

2.   Has the legislature through a general law authorized local law on the same subject?

No.  There is no general law enacted by the legislature that allows local regulation of air emissions.[3]   Although the Georgia Constitution contains a paragraph entitled “Supplementary powers” under the “Home Rule for Counties and Municipalities” Section that authorizes counties and municipalities to exercise powers of “air quality control,” Ga. Const., Art. IX, Sec. II, Para. III(a)(13), that paragraph does not resolve questions of preemption when there is general law on a subject that is proposed for local legislation.  That process is accomplished by the uniformity clause.  Fieldale Farms, 270 Ga. at 274.  In addition, subparagraph (c) of the supplementary powers paragraph provides: “Nothing contained within this Paragraph shall operate to prohibit the General Assembly from enacting general laws relative to the subject matters listed in subparagraph (a) of this Paragraph or to prohibit the General Assembly by general law from regulating, restricting, or limiting the exercise of the powers listed therein; but it may not withdraw any such powers.” Ga. Const., Art. IX, Sec. II, Para. III(c).

If subparagraph (a) of the supplementary powers paragraph authorized local legislation when there is general law in existence on the same subject, it would have had implications in the Fieldale Farms case.  As discussed above, that case dealt with a county’s attempt to impose regulatory requirements on a company engaged in the disposal of waste from a wastewater treatment process.  Fieldale Farms, 270 Ga. at 273.  Although not discussed in the Court’s opinion, the supplementary powers paragraph, in addition to listing “air quality control,” also lists “solid waste … disposal” and “sewage collection and disposal systems” as supplementary powers for a county or municipality.   Ga. Const., Art. IX, Sec. II, Para. III(a)(2) and (6).  Nevertheless, relying exclusively on the uniformity clause, the Supreme Court concluded that the county was preempted by the Georgia Water Quality Control Act from imposing its regulatory requirements in addition to those requirements already imposed by the state.  Consequently, the rationale of the Supreme Court in the Fieldale Farms case is equally applicable here: “[B]y assigning the task of developing permit requirements directly to the state, the statute implies that the General Assembly did not intend to give [local governments] concurrent jurisdiction to regulate through a permit system.”   Id. at 277.

Therefore, it is my unofficial opinion that, pursuant to the uniformity clause of the Georgia Constitution, the City of Snellville is preempted by the Georgia Air Quality Act from adopting a comprehensive ordinance that would impose air quality related regulatory requirements and emission limitations on the operation of a crematorium within city limits.

Prepared by:

JOHN E. HENNELLY

Senior Assistant Attorney General


[1] Official opinions of the Attorney General are written to the Governor and agency heads.  Unofficial opinions are issued to other state officials and, when deemed of significance in matters of general state law, to local officials.  The question presented in this case involves a matter of statewide application and is integrally related to a previous opinion issued by this office on the same subject.

[2] The relevant provision, known as the uniformity clause, in the 1976 Constitution read:  “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by existing general law.”  Ga. Const. of 1976, Art. I, Sec. II, Para. VII.  The revised provision in the current Constitution now reads: “Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.”   Ga. Const., Art. III, Sec. VI, Para. IV(a)(emphasis shows the primary revisions to the previous Constitution).

[3]For an example of such a law, see the Georgia Comprehensive Solid Waste Management Act, O.C.G.A. § 12‑8‑30.9: “No provision of this part and no rule, regulation, or ruling of the board or the director shall be construed to be a limitation … [o]n the power of a municipality, county, authority, or special district to adopt and enforce additional regulations, not in conflict with this part, imposing further conditions, restrictions, or limitations with respect to the handling or disposal of municipal solid waste.”