Untitled Texas Attorney General Opinion ( 1974 )

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THEATTORNEY GBWERAL
OF TEXAS
AUSTIN. T-e 787ll
November 20, 1974
The Honorable Charles R. Barden Opinion No. H- 455
Executive Director
Texas Air Control Board Re: Authority of Air Control
8520 Shoal Creek Blvd. Board to raquire that permits
Austin, Texas 78758 be obtained prior to construc-
tion of indirect sources ol air
pollution.
Dear Mr. Barden:
You have submitted two requests which raise the following four
questions for our determination.
(1) Does the”Texas Clean Air Act empower the
Texas Air Control Board to establish standards
of performance for new stationary sources which
have the potential for emitting air contaminants?
(2) Does the Texas Clean Air Act give the ~T&cas -.
Air Control Board authority to require that.indirect
sources of air contaminants obtain$ermitsto con- .-..
struct and operate?
,’ _7’ ‘.
(3) If the answer to Question’One’ia in ttie affirms;
,~ tive. does theTexas Clean Air ‘Act give the T@xas
Air Control Board the authority to’ &for& federal
regulations on new source performance standards
promulgated under Section 111 of the Federal Cli%n
Air Act pursuant to a delegation of authority by
the administrator under Section Ill(c)(l) of the
Federal Clean Air Act?
p. 2093
The Honorable Charles R. Barden page 2 (H-455)
(4) Does the Texas Cl.ean Air Act give the Texas
Air Control Board the authority to enforce federal
regulations on hazardous air pollutants promulgated
under Section 112 of the Federal Clean Air Act,
pursuant to a delegation of authority by the administrator
under Section 112(d) (I) of the Federal Clean Air Act?
Section 1.05, article 4477-5, V. T. C. S., provides:
The Texas Air Control Board is the state air
pollution control agency. The board is the prin-
cipal authority in the state on matters relating to
the quality of air resources in the state and,for .~
setting standards, criteria, levels and emission
limits for air content and pollution control.
Section 3.09 of article 4477-5, V. T. C. S., empowers the Texas
Air Control Board (hereafter, the Board) to make rules and regulations
consistent with the general intent and purposes of the Act. Section 3. IO(a)
allows these rules and regulations to “differ in [their] terms and pro-
visions as between particular conditions, particular sources, and
particular areas of the state. ” Section 3.27 requires any person who
plans to construct any new facility or modify any existing facility which
may emit air contaminants to apply for and obtain a construction permit
from the Board. The Board is ,to determine whether the construction
“will comply with applicable air control standards and the intent of the
Texas Clean Air Act. ” Section 3.27 has been construed to require a
permit from the Board whenever there ia.a “practical possibility” that
the facility will emit contaminants into ,the air. Europak. Inc. v. County
of Hunt, 507, S. W. 2d ,884, 887 (Tax. Civ. App. --Dallas 1974, no writ).
In our opinion these sections of the Texas Clean Air Act provide
the Board with ample authority to set standards of performance for new
stationary sources which have a “practical possibility” of emitting air
contaminants and to enforce these standards through the permit process.
p. 2094
.
The Honorable Charles R. Barden page 3 (H-455)
Your second question is whether the Board has authority to
require permits for indirect sources of air contaminants. An indirect
source is one which attracts mobile source activity, 40 C. F. R. $52.22(b),
at 39 Fed. Reg. 7276 (1974). This mobile source activity is usually
vehicular in nature, and examples of indirect sources are highways,
office buildings, or any facility which would attract a number of mobile
sources such as automobiles.
The Texas Clean Air Act makes no clear or implied reference to
indirect sources. Section 1.03 defines a “new source” as a “stationary
source, ‘I $1.03(E), and a “source” as a “point of origin of air contaminants, ”
5 1.03(2). While these terms are not used in section 3.27, wlich establishes
the permit requirement, their definitions indicate that the Legislature
intended to regulate only direct sources. In fact the power to regulate
indirect sources was not required of state implementation plans when the.
Environmental Protection Agency published its initial evaluations and
approvals of such plans in 1972. 37 Fed. Reg. 10842.
Section 3.27 by its terms does not require a permit for indirect
sources, but only for “[facilities] which may emit air contaminants. ”
As previously noted, indirect sources do not themselves emit pollutants.
Although the Board is to consider the land use involved in a permit
request, $3.27(c), it is our opinion that its jurisdiction with respect to
permits is not so broadened to include indirect sources, rather that
the Board is to consider the land use involved in the construction and
operation of direct sources. Had the Legislature intended to give the
Board authority to require permits for so broad a category as indirect
sources, it would have done so by more explicit language and with more
guidance.
Your third and fourth questions, dealing with enforcement of
federal regulations by the Board, are answered by Attorney General
Opinion H-222 (l974), which states:
‘[the Board] has no authority, absent legislative
authority, to enforce or to administer a proposed
regulation of the Environmental Protection Agency
which is not within its statutory jurisdiction and
which it has not adopted as its own regulation.
p. 2095
The Honorable Charles R. Barden page 4 (H-455)
Since our holding was on the basis that the Legislature had not empowered
the Board to enforce federal regulations, itis of no significance that the
regulation involved in H-222 was of a proposed nature whereas the regula-
tions involved here are operative. While 42 U. S. C. 5 $1857c-6(c) (I), and
1857c-7(d) (1) may allow the federal administrator to delegate the power to
enforce federal regulations to the various states, this statute may not
serve to provide the necessary authorization under state law. “[ T]he
Board is a creature of the Texas Legislature and possesses only such
powers as may be delegated to it by the Legislature, expressly or
impliedly. ” Attorney General Opinion H-222 (1974). See State v. Jackson,
376 S. W. 2d 341 (Tex. 1964). Aside from failing to expressly provide the
necessary authorization, the Texas Clean Air Act indicates in section 3. IO(d)
that the Board is to enact its own rules and regulations instead of enforcing
the federal law. That section allows the Board to include in its rules and
regulations particular methods for control of emissions from motors and
engines used in propelling land vehicles but requires these rules and
regulations to be consistent with the federal law. If the Legislature had
envisioned enforcement of the federal law by the Board it would not have
provided for this duplication and could easily have expressly so authorized
the Board.
The Board has the express statutory authority to enact regula-
tions over the subject matter of the federal statutes involved. 42 U.S. C.
1857c-b(c) (1) deals with standards of performance for new sources, and
we have stated herein that the Board may establish such standards with
respect to direct sources. The Board also has complete authority over
hazardous pollutants dealt with by 42 U. S. C. 1857c-7(d) (I). V. T. C. S.,
art. 4477-5, § 3.14.
Although the Board may not itself enforce the federal regula-
tions it may monitor those activities which are within the jurisdiction
of the Board even though not currently subject to Board regulations.
V.T.C.S., art. 4477-5, 5 3.06. Section 3.20 authorizes the Board
to investigate “without limitation . . . violations and general air pollu-
tion problems or conditions. ” Therefore the Board may investigate
matte,rs outside the scope of its regulatory jurisdiction. The informa-
tion so collected may be util,iaed in a citizen’s suit under the federal
act and regulations, 42 U.S. C. 1857h-Z(a), which the federal act
permits to be brought by the state itself. 42 U.S. C. 1857h (e).
p. 2096
(. ,.
The Honorable Charles R. Barden page 5 (H-455)
SUMMARY
The Texas Clean Air Act empowers the Texas
Air Control Board to establish standards of per-
formance for new stationary sources which have
a “practical possibility” of emitting air contaminants.
The Texae Clean Air Act does not give the
Texas Air Control Board authority to require
permits for the construction and operation of
indirect sources.
The Texas Clean Air Act does not empbwer the
Texas Air Control Board to enforce federal regula-
tions. The Board may adopt and enforce its own
regulations, may monitor activities within its
jurisdiction which may cause air pollution, and
may investigate problems and conditions of general
air pollution.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
APAROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
h3
p. 2097