You are here

Official Opinion 97-25

Official Opinion 97-25

July 31, 1997
To: 

Director
Environmental Protection Division Georgia Department of Natural Resources

Re: 

The language of O.C.G.A. ¿ 50-13-4(a)(4) would not prohibit the Board of Natural Resources and the Director of the Environmental Protection Division from adopting regulations and taking such actions as are necessary to ensure that Georgia's regulatory authority to administer its environmental programs is at least as stringent as federal regulatory authority established pursuant to the federal environmental laws and U.S. Environmental Protection Agency regulations promulgated pursuant thereto.

This responds to your memorandum dated June 3, 1997, to this author wherein you request an official opinion as to the meaning of O.C.G.A. § 50-13-4, as recently amended, and its applicability to the federally delegated environmental programs administered by this state. Specifically, you ask whether this Section might prohibit the Board of Natural Resources (Board) from adopting regulations at least as stringent as the corresponding federal Environmental Agency (EPA) regulations for each of the federal environmental programs delegated to the Georgia Environmental Protection Division (EPD) to administer.

Official Code of Georgia Annotated § 50-13-4(a) was recently amended by the General Assembly of Georgia to add a new paragraph (4) which reads as follows:

In the formulation and adoption of any rule, an agency shall choose an alternative that does not impose excessive regulatory costs on any regulated person or entity which costs could be reduced by a less expensive alternative that fully accomplishes the stated objectives of the statutes which are the basis of the proposed rule.

(Emphasis added.)

A cardinal rule of statutory construction is that a statute needs no interpretation when its meaning is plain and unambiguous. Central of Georgia Ry. Co. v. Tucker, 99 Ga. App. 52, 57 (1959). The above language clearly states that in the adoption of a regulation by an agency, any consideration of regulatory costs must be subservient to the requirement that the regulation must fully accomplish the stated objectives of the state statutes under which the rule is adopted.

In determining whether the language of O.C.G.A. § 50-13-4(a)(4) might prohibit the Board from adopting regulations at least as stringent as EPA regulations adopted under federal laws for programs delegated to EPD, one must look at each of the state laws under which a federally delegated program is administered by EPD in order to ascertain the stated objectives of such law. Such state laws are, to-wit:

(1) the Georgia Water Quality Control Act, O.C.G.A. § 12-5- 20, under which the federally delegated National Pollutant Discharge Elimination System Program and the Underground Injection Control Program are administered;

(2) the Georgia Air Quality Act, O.C.G.A. § 12-9-1, under which the federally delegated Clean Air Act Program is administered;

(3) the Georgia Hazardous Waste Management Act, O.C.G.A. § 12-8-60, under which the federally delegated Hazardous Waste Program is administered;

(4) the Georgia Safe Drinking Water Act of 1977, O.C.G.A. § 12-5-170, under which the federally delegated Safe Drinking Water Program is administered; and

(5) the Georgia Underground Storage Tank Act, O.C.G.A. § 12- 13-1, under which the federally delegated Underground Storage Tank Program is administered.

The Georgia Water Quality Control Act

The Georgia Water Quality Control Act confers broad discretionary authority upon EPD to take such actions as are necessary to protect the public interest against pollution of the waters of the state. O.C.G.A. § 12-5-21(c). The Board is authorized to take such actions as are necessary to carry out the requirements relating to the state's participation in the National Pollutant Discharge Elimination System Program (NPDES Program) established under the federal Water Pollution Control Act (FWPCA). O.C.G.A. § 12-5-23(a)(1)(R). In the performance of his or her duties, the Director of EPD must perform all acts and exercise all incidental power necessary to carry out the purposes and requirements of the FWPCA, as amended, relating to this state's participation in the NPDES Program. O.C.G.A. § 12-5-23(c)(15).

With regard to the NPDES Program, Section 402(b)(1)(D) of the FWPCA requires that NPDES states have the authority to issue permits which "control the disposal of pollutants into wells." Pub. L. No. 92-500, 86 Stat. 816, 880-81 (1972). Georgia uses its existing NPDES statutory authority to regulate well disposal which satisfies the requirements of the Underground Injection Control Program (UIC Program), established pursuant to Part C of the federal Safe Drinking Water Act (SDWA), Pub. L. No. 93-523, 88 Stat. 1660, as amended.

Based upon the above statutory language, it is my official opinion that the language of O.C.G.A. § 50-13-4(a)(4) would not prohibit the Board and the Director from adopting regulations or taking such actions as are necessary to insure that the state's regulatory authority to administer Georgia's NPDES Program (and through this Program, Georgia's UIC Program) is at least as stringent as federal regulatory authority established pursuant to the FWPCA and SDWA and EPA regulations adopted pursuant thereto.

The Georgia Air Quality Act

The Georgia Air Quality Act designates the EPD as the agency to administer such Act. O.C.G.A. § 12-9-4. The Board is given broad rule-making authority, including the authority, inter alia, to establish ambient air quality standards, standards of performance, emission limitations, emission control standards, requirements for record maintenance, reporting, monitoring and sampling, requirements for prevention of significant deterioration, standards of performance and emission limitations for mobile sources, requirements for obtaining Title V permits, standards for construction of new stationary

sources or modifications of existing sources in areas of non- attainment, programs for reduction of sulfur dioxide and nitrogen oxides, pre-construction and pre-review requirements, and general permits, all of which must be no less stringent than those required under the Federal Clean Air Act Amendments of 1977, as amended, 42 U.S.C. § 7401, (Clean Air Act). O.C.G.A. § 12-9- 5(b)(2), (3), (4), (6), (7), (8), (9), (12), (14), (15), (16), (17).

Based upon an examination of the above statutory language, it is my official opinion that the language of O.C.G.A. § 50-13-4(a)(4) would not preclude the Board from adopting regulations at least as stringent as regulations adopted by EPA pursuant to the Clean Air Act.

The Georgia Hazardous Waste Management Act

The Georgia Hazardous Waste Management Act provides broad authority to the Board to adopt regulations to provide for the control and management of hazardous wastes. O.C.G.A. § 12-8-64. The Director of EPD has the authority "[T]o establish hazardous waste management standards for the state, provided that they are in all cases not less stringent than those standards provided by the federal act." O.C.G.A. § 12-8-65(a)(20). "Federal act" is defined as the Federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended. "Hazardous waste management" is defined, to-wit: "[t]he systematic recognition and control of hazardous wastes from generation to final disposition or disposal, including, but not limited to, identification, containerization, labeling, storage, collection, source separation, transfer, transportation, processing, treatment, facility closure, post closure, perpetual care, resource recovery, and disposal." O.C.G.A. § 12-8-62(13).

Further, the Director is empowered "[t]o take all necessary steps to ensure that the administration of this article is consistent with and equivalent to the provisions of the federal act and any standards, rules, or regulations promulgated thereunder." O.C.G.A. § 12-8-65(a)(21).

Based upon the above statutory language, it is my official opinion that the language of O.C.G.A. § 50-13-4(a)(4) would not prohibit the Board and the Director from adopting regulations or taking such actions as are necessary to ensure that the

state's regulatory authority to administer Georgia's Hazardous Waste Management Program is at least as stringent as federal regulatory authority established pursuant to the federal act and EPA regulations promulgated pursuant thereto.

The Georgia Safe Drinking Water Act

The Georgia Safe Drinking Water Act defines "national primary drinking water regulations" as primary drinking water regulations promulgated by the Administrator of EPA. O.C.G.A. § 12-5-172(9). Such Act defines "secondary drinking water regulations" as regulations which apply to public water systems and which specify maximum contaminant levels which, in the judgment of the Director of EPD or the Administrator of EPA, are requisite to protect the public welfare. O.C.G.A. § 12-5-172(12). The Board is authorized to promulgate Georgia primary drinking water regulations and Georgia secondary drinking water regulations. O.C.G.A. § 12-5-174(a)(3), (4). Such primary drinking water regulations must be no less stringent than national primary drinking water regulations. O.C.G.A. § 12-5-177(b). The Director of EPD may grant variances from such regulations but such variances must be granted under conditions no less stringent than those authorizing variances under the federal Safe Drinking Water Act (Federal Act), Pub. L. No. 93-523. O.C.G.A. § 12-5- 178. The Director may establish maximum contaminant levels in permits which must be complied with in the shortest reasonable time period consistent with the Federal Act.

Based upon the above statutory language, it is my official opinion that the language of O.C.G.A. § 50-13-4(a)(4) would not prohibit the Board and the Director from adopting regulations or taking such actions as are necessary to ensure that the state's regulatory authority to administer Georgia's Safe Drinking Water Program is at least as stringent as federal regulatory authority established pursuant to the Federal Act and EPA regulations promulgated pursuant thereto.

The Georgia Underground Storage Tank Act

The Georgia Underground Storage Tank Act authorizes the Board to promulgate regulations to provide for the management of regulated substances stored in underground tanks to protect the environment and health of humans. Such regulations must include all requirements necessary for consistency with the applicable federal law including the federal Solid Waste Disposal Act, 42 U.S.C. § 6901, as amended by the federal Hazardous and Solid Waste Amendments of 1984, Pub. L. No.

98-616, 98 Stat. 3221, as amended (federal Solid Waste Disposal Act), and all regulations adopted pursuant thereto. O.C.G.A. § 12-13-5(1). The Director of EPD is authorized to grant variances which are not inconsistent with the federal Solid Waste Disposal Act; to ensure that Georgia complies with the federal Solid Waste Disposal Act; establish underground storage tank technical standards not inconsistent with the federal Solid Waste Disposal Act; and to take all necessary steps to ensure that the administration of the Underground Storage Tank Act is consistent with and equivalent to the federal Solid Waste Disposal Act.

Based upon the above statutory language, it is my official opinion that the language of O.C.G.A. § 50-13-4(a)(4) would not prohibit the Board and the Director from adopting regulations or taking such actions as are necessary to ensure that the state's regulatory authority to administer Georgia's Underground Storage Tank Program is at least as stringent as federal regulatory authority established pursuant to the federal Solid Waste Disposal Act and EPA regulations promulgated pursuant thereto.

Prepared by:

ROBERT S. BOMAR
Senior Assistant Attorney General