PUBLIC HEALTH AND SAFETY
By adopting 63 O.S. 2751 [63-2751] et seq. (1976), the Controlled Industrial Waste Disposal Act, the legislature repealed 63 O.S. 2258.1 [63-2258.1] (1976), inasmuch as the provisions of such section are inconsistent with the latter act. The office of the Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following questions: 1. Did the adoption of the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), repeal 63 O.S. 2258.1 [63-2258.1] (1976)? 2. If not, how is the distance requirement to the affected city or town to be determined? The purpose of the Oklahoma Solid Waste Management Act enacted in 1970 was to regulate the collection and disposal of solid and non-solid putrescible and nonputrescible refuse, commercial waste, industrial waste, and hazardous waste in such a manner so as to protect the public health and the environment. At the time of enactment, hazardous wastes were included in the definition of solid waste and regulated in accordance with the Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq. (1971), and the rules and regulations promulgated pursuant thereto. On May 3, 1976, the Solid Waste Management Act was amended to prohibit the Oklahoma State Department of Health from issuing a permit for the establishment, construction, operation or maintenance of a hazardous waste site under certain circumstances. See 63 O.S. 2258.1 [63-2258.1] (1976), becoming effective May 3, 1976, which reads as follows: "Notwithstanding any other provision of law, or any rule or regulation of any state agency or department, no permit shall be issued by the State Department of Health for the establishment, construction, operation or maintenance of any facility intended wholly or partially for the disposal of hazardous wastes, including but not limited to those hazardous wastes defined by paragraph 4 of 63 O.S. 2253 [63-2253] of the Oklahoma Solid Waste Management Act, within the boundaries of any city or town or within a distance of one (1) mile of the boundaries of any city or town, or within one (1) mile of the public water supply of any city or town, whether such water supply is contained in reservoirs or wells. For the purpose of this act such boundaries and locations shall be those in existence at the time the application for such permit may be issued by the State Department of Health upon the approval, by resolution or ordinance, or the governing body of each city or town affected. Once said consent is granted it may not be revoked unless reasonable cause is shown." Subsequent thereto, on June 15, 1976, the Oklahoma Legislature enacted the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), in order to more effectively regulate the collection, storage, and disposal of controlled industrial wastes, i.e., hazardous wastes. Said Act contained a general repealer clause repealing all laws or parts of laws conflicting with it. (Laws 1976, Ch. 251, 17) Pursuant to 63 O.S. 2251 [63-2251] et seq. (1976), the Controlled Industrial Waste Management Section is given the authority and duty to issue permits for the construction and operation of controlled industrial waste disposal sites and facilities. However, construction permits are not to be issued except in accordance with the conditions enumerated in 63 O.S. 2757 [63-2757] (1976), which reads as follows: "The Section shall issue permits for the construction of processing facilities or disposal sites. No construction permit shall be issued except upon proper application, hearing, if requested, and determination by the Section that the proposed site and facility are physically and technically suitable. Upon receipt of an application the Section shall notify affected property owners and the city and county health departments located within the county. For the purpose of this section the term affected property owners shall mean all property owners within one (1) mile of the proposed site if said site is within an incorporated city or town or property owners within two (2) miles of the proposed site otherwise. If any of the said property owners or health departments request a public hearing, said hearing shall be held before the construction permit is issued. Provided, however, that the public hearing shall pertain only to the physical and technical suitability of the proposed processing facility or disposal site. The Section shall act, within ninety (90) days, on an application for an authority to construct a controlled industrial waste processing facility or disposal site." Rather than undertaking an analysis of existing laws and specifying those particular ones which are to be repealed, it is common practice for the Oklahoma Legislature to utilize a general repealer clause. Such a clause denotes the legislative intent to repeal any prior statutory provisions which are either repugnant to, or inconsistent and irreconcilable with, the latter act. Thus, the question herein resolves itself to determining whether or not 63 O.S. 2258.1 [63-2258.1], supra, is inconsistent with 63 O.S. 2757 [63-2757], supra, and therefore repealed thereby. We find that they are inconsistent. 63 O.S. 2258.1 [63-2258.1] prohibits the issuance of a construction or operational permit for a controlled industrial waste site within the boundaries of a city or town, within one (1) mile of same, or within one (1) mile of its public water supply, unless the governing body of the city or town has approved the location of the site by resolution or ordinance. 63 O.S. 2757 [63-2757], the later expression of legislative will, prohibits the issuance of a construction permit for a controlled industrial waste site unless notification is given to property owners within one (1) mile of the proposed site if said site is within an incorporated city or town, or property owners within two (2) miles of the proposed site if said site is not within an incorporated city or town. Only upon such notification to affected property owners affording them the opportunity for a public hearing, and a determination by the Controlled Industrial Waste Management Section that such site is physically and technically suitable, can a construction permit for a controlled industrial waste disposal site or facility be issued. Thus, both 63 O.S. 2258.1 [63-2258.1] and 63 O.S. 2757 [63-2757] deal with construction permits for controlled industrial waste disposal sites, both contain certain boundary limitations and both address public participation. However, the restrictions they impose are inconsistent with each other, and therefore the earlier section must fall under the repealer clause of the latter act. Therefore, your first question must be answered in the affirmative. The Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), being the latter enactment, prevails over the prior inconsistent provisions of 63 O.S. 2258.1 [63-2258.1] (1976), thereby repealing same. Inasmuch as your first question was answered in the affirmative, your second question need not be answered. It is, therefore, the opinion of the Attorney General that by adopting 63 O.S. 2751 [63-2751] et seq.
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PUBLIC HEALTH AND SAFETY
By adopting 63 O.S. 2751 [63-2751] et seq. (1976), the Controlled Industrial Waste Disposal Act, the legislature repealed 63 O.S. 2258.1 [63-2258.1] (1976), inasmuch as the provisions of such section are inconsistent with the latter act. The office of the Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following questions: 1. Did the adoption of the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), repeal 63 O.S. 2258.1 [63-2258.1] (1976)? 2. If not, how is the distance requirement to the affected city or town to be determined? The purpose of the Oklahoma Solid Waste Management Act enacted in 1970 was to regulate the collection and disposal of solid and non-solid putrescible and nonputrescible refuse, commercial waste, industrial waste, and hazardous waste in such a manner so as to protect the public health and the environment. At the time of enactment, hazardous wastes were included in the definition of solid waste and regulated in accordance with the Solid Waste Management Act, 63 O.S. 2251 [63-2251] et seq. (1971), and the rules and regulations promulgated pursuant thereto. On May 3, 1976, the Solid Waste Management Act was amended to prohibit the Oklahoma State Department of Health from issuing a permit for the establishment, construction, operation or maintenance of a hazardous waste site under certain circumstances. See 63 O.S. 2258.1 [63-2258.1] (1976), becoming effective May 3, 1976, which reads as follows: "Notwithstanding any other provision of law, or any rule or regulation of any state agency or department, no permit shall be issued by the State Department of Health for the establishment, construction, operation or maintenance of any facility intended wholly or partially for the disposal of hazardous wastes, including but not limited to those hazardous wastes defined by paragraph 4 of 63 O.S. 2253 [63-2253] of the Oklahoma Solid Waste Management Act, within the boundaries of any city or town or within a distance of one (1) mile of the boundaries of any city or town, or within one (1) mile of the public water supply of any city or town, whether such water supply is contained in reservoirs or wells. For the purpose of this act such boundaries and locations shall be those in existence at the time the application for such permit may be issued by the State Department of Health upon the approval, by resolution or ordinance, or the governing body of each city or town affected. Once said consent is granted it may not be revoked unless reasonable cause is shown." Subsequent thereto, on June 15, 1976, the Oklahoma Legislature enacted the Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), in order to more effectively regulate the collection, storage, and disposal of controlled industrial wastes, i.e., hazardous wastes. Said Act contained a general repealer clause repealing all laws or parts of laws conflicting with it. (Laws 1976, Ch. 251, 17) Pursuant to 63 O.S. 2251 [63-2251] et seq. (1976), the Controlled Industrial Waste Management Section is given the authority and duty to issue permits for the construction and operation of controlled industrial waste disposal sites and facilities. However, construction permits are not to be issued except in accordance with the conditions enumerated in 63 O.S. 2757 [63-2757] (1976), which reads as follows: "The Section shall issue permits for the construction of processing facilities or disposal sites. No construction permit shall be issued except upon proper application, hearing, if requested, and determination by the Section that the proposed site and facility are physically and technically suitable. Upon receipt of an application the Section shall notify affected property owners and the city and county health departments located within the county. For the purpose of this section the term affected property owners shall mean all property owners within one (1) mile of the proposed site if said site is within an incorporated city or town or property owners within two (2) miles of the proposed site otherwise. If any of the said property owners or health departments request a public hearing, said hearing shall be held before the construction permit is issued. Provided, however, that the public hearing shall pertain only to the physical and technical suitability of the proposed processing facility or disposal site. The Section shall act, within ninety (90) days, on an application for an authority to construct a controlled industrial waste processing facility or disposal site." Rather than undertaking an analysis of existing laws and specifying those particular ones which are to be repealed, it is common practice for the Oklahoma Legislature to utilize a general repealer clause. Such a clause denotes the legislative intent to repeal any prior statutory provisions which are either repugnant to, or inconsistent and irreconcilable with, the latter act. Thus, the question herein resolves itself to determining whether or not 63 O.S. 2258.1 [63-2258.1], supra, is inconsistent with 63 O.S. 2757 [63-2757], supra, and therefore repealed thereby. We find that they are inconsistent. 63 O.S. 2258.1 [63-2258.1] prohibits the issuance of a construction or operational permit for a controlled industrial waste site within the boundaries of a city or town, within one (1) mile of same, or within one (1) mile of its public water supply, unless the governing body of the city or town has approved the location of the site by resolution or ordinance. 63 O.S. 2757 [63-2757], the later expression of legislative will, prohibits the issuance of a construction permit for a controlled industrial waste site unless notification is given to property owners within one (1) mile of the proposed site if said site is within an incorporated city or town, or property owners within two (2) miles of the proposed site if said site is not within an incorporated city or town. Only upon such notification to affected property owners affording them the opportunity for a public hearing, and a determination by the Controlled Industrial Waste Management Section that such site is physically and technically suitable, can a construction permit for a controlled industrial waste disposal site or facility be issued. Thus, both 63 O.S. 2258.1 [63-2258.1] and 63 O.S. 2757 [63-2757] deal with construction permits for controlled industrial waste disposal sites, both contain certain boundary limitations and both address public participation. However, the restrictions they impose are inconsistent with each other, and therefore the earlier section must fall under the repealer clause of the latter act. Therefore, your first question must be answered in the affirmative. The Controlled Industrial Waste Disposal Act, 63 O.S. 2751 [63-2751] et seq. (1976), being the latter enactment, prevails over the prior inconsistent provisions of 63 O.S. 2258.1 [63-2258.1] (1976), thereby repealing same. Inasmuch as your first question was answered in the affirmative, your second question need not be answered. It is, therefore, the opinion of the Attorney General that by adopting 63 O.S. 2751 [63-2751] et seq. (1976), the Controlled Industrial Waste Disposal Act, the legislature repealed 63 O.S. 2258.1 [63-2258.1] (1976), inasmuch as the provisions of such section are inconsistent with the latter act. (JAMES R. BARNETT)