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THURSERT E. BAKER 40 CAPilOL SOUARE SWV
ATTORNEY GENERAL ATLANTA. GA 33A.1300
UNOFFICIAL OPINION 2009-1
To: City Attorney March 16, 2009
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 Sneliville 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 Chatham County 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, [iut 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 Franklin County land application of sludge operations. Id. at 273.](ViewImageLocal?handle=hein.sag/sagga0007&div=1&collection=&method=preview&ext=.png&size=3)