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Official Opinion 96-4

Official Opinion 96-4

February 28, 1996
To: 

Executive Director
Georgia Ports Authority

Re: 

The Georgia Ports Authority, as an instrumentality of the State of Georgia, is not bound by a Chatham County ordinance mandating certain environmental reporting requirements to be made to the County.

In 1994, Chatham County enacted an ordinance requiring the reporting of certain spills or releases of hazardous materials to the Savannah Fire Department and other county government entities. The ordinance borrows definitions from the Official Code of Georgia concerning oil or hazardous material spills and releases, which apply, in part, to state authorities. You have asked whether the Georgia Ports Authority is legally required to comply with the Chatham County ordinance, and whether it is subject to the penalties stated therein.

The Georgia Ports Authority is a state authority created by O.C.G.A. § 52-2-1 et seq. to implement a constitutional mandate to construct and maintain state docks. See Ga. Const. 1945, Art. VII, Sec. II, Para. I(6); Ga. Const. 1983, Art. VII, Sec. III, Para. I(a). The Authority performs "an essential governmental function" for public purposes for the "benefit of the people of this state." O.C.G.A. § 52-2-37.

Chatham County Ordinances, Chapter 21, Health, Safety, and Sanitation, Art. VIII, § 21-08 applies to any "person" having control over any hazardous substance or oil. The term "person" is defined by reference to O.C.G.A. § 12-14-1(6) (Supp. 1995), which includes "the state and any agency or authority thereof." Obviously, the Authority is expressly required to comply with the state law concerning such spills or releases. O.C.G.A. § 12-14-1 et seq. Chatham County may not, however, by borrowing the state law definition of "person" thereby require compliance of a state authority through a separate and independent county ordinance.

It has been well-settled for over 100 years that local governments exercise only the powers delegated to them by the states. An attempt by a county or municipality to exercise such power against the state is ultra vires. City of Atlanta v. State, 181 Ga. 346 (1935); Mayor of Atlanta v. Central R.R. & Banking, 53 Ga. 120 (1874); 1958-59 Op. Att'y Gen. p. 219; 1971 Op. Att'y Gen. 71-113; 1973 Op. Att'y Gen. 73-164; 1976 Op. Att'y Gen. U76-59. See also 1976 Op. Att'y Gen. U76-36 (county has no jurisdiction over lands of a state authority). Even a general power granted to a county does not apply to the state or its instrumentalities in the absence of express language in the grant. See O.C.G.A. § 1-3-8; 1958-59 Op. Att'y Gen. p. 5.

Therefore, based on the foregoing, it is my official opinion that the Chatham County ordinance mandating certain environmental reporting to the county of oil or hazardous materials spills and releases is not binding upon the Authority nor is the Authority subject to its penalty provisions.

Prepared by:

GEORGE S. ZIER
Assistant Attorney General