The Honorable Charl,e8R. Barden Opinion No. R-792
Executive Director
Texae Air Control Board Re: Reeponribility of
8520 Shoal Creek Boulevard the Air Control Board in
Austin, Texar 70750 certifying control facil-
itie under tim Clean Air
Financing Act b
Dear Mr. Barden:
You have reque8ted our opinion on a number ef,que8tionr
regarding the Clean Air Financing Act, articl8 4477-Sa, V.T.C.S.
In thfr regard you a8kr
1. What ir the rignifioance of the u8e
of the term 'air pollution' rather than
'air contaminant' in the definition of
'control facilitie8?'
2. May the Board certify a pertion mz
percentage of a facility a8 a "control
facility?'
3. Uay the Board certify a8 a 'control
facility' a facility whioh require8 a
permit to oonrtructvnder rection 3.27
of the Texar Clean Air Act, article
4477-5, V.T.C.S.?
4. Uay the Board certify a8 a 'oontrol
faoility' e facility de8igned to reduce
emirrion8 from a propored, but not yet
oon8truotad, Iouroe of air oontaminanC8?
p, 3338
The ¬able Charlee R. Barden - page 2 (H-792)
"Control facilitiee" is defined in the Clean Air
Financing Act a8
facilitiee deeigned to reduce or elimi-
nate air pollution which have been SQ
certified by the Texae Air Control
Board or by it8 executive eecretary a8
may be authoriled by the TeXa8 Air
Control Board. V.T.C.S. art. 4417-5a,
S 3(Z).
The Act 8tater that "air pollution * and "air contaminant"
hrve the 8ame meaning8 a8 in the Texae Clean Air Act.
Sec. 3(l). The Clean Air Act define8 "air contaminants"
ae
particulate matter, duet, funie8,qa8,
mi8t, Bmoke, vapor or odor, or any
combination thereof produced by pro-
ce88e8 other than natural. . . .
ViT.C;S. art, 4477-5, S 1.03(l).
"Air pollution" means
the pre8ence in the atmo8phere of one
or more air contaminant8 or combination8
thereof, in ruch concentration and of 8uch
duration a8 are or may tend to be injurisu8
to or to advereely affect human health or
welfare, animal life, vegetation or property,
or a8 to interfare'withthe normal use and
enjoyment of animal lif,e,vegetation or
property. ~. . . V.T.C.S. art. .4477-5,
s 1.03(3).
It ia cl8ar that the concept of "air pollution" i8
narrower in rcepe than that of 'air contaminant." In order
to qualify a8 “air pollution," an '8ir contaminant" murt be
prerrentin the atmellphere,and "in ruch concentration and of
ruoh duration" a8 "to be injurious to or to adverlrelyaffect
human health or welfare, animal life, vegetation or property,
Q. 3339
. -
The Honorable Charlea R. Barden - page 3 (H-792)
or as to interfere with the normal uoe and enjoyment of animal
life, vegetation, or property." Thu8, the Board is permitted
to certify a8 a "control facility" only those facilities
which are 'deeigned to reduce or eliminate air pollution,"
as that term ie defined in the TeXa8 Clean Air Act.
Your second querrtionaeks whether the Board may certify
a portion or percentage of a facility a8 a "control facility.*
Section 14 of article 4477-5a provide8:
In certifying facilitiee a8 control
facilitiee the Texas Air Control Board
may pre8oribe neceeeary criteria and,
procedure8 for euch certification and
can limit euch certification to con-
firming that the propored facility i8
intended for the purpose of controlling
air pollution. No certification a8 to
the adequacy of the facility or it8
expected performance or other epecifi-
cation8 shall be neceeeary.
The 8tatute provides, in eection 13, that
[nlotwithetanding the provi8ion8 of thi8
eection, it in further provided that
nothing in thie Act shall in any way
limit or diminieh the power and authority
of the Texas Air Control Board or of a
local government to enact and enforce
rule8 and regulation8 and to carry out
other dutiee authorized by the TeXa8
Clean Air Act, a8 amended. . . .
One of the duties which the Clean Air Act impose8 upon the
Board ie to
eeek the accomplishment of the purporer
o'fthi8 Act through the control of air
contaminant8 by all practical and eco-
nomically feaeible method8 coneietent
with the power8 and dUtie8 of the board.
Q. 3340
.I -
The Honorable Charler R. Barden - page 4 (H-792)
The board ha8 the power8 and dutier
rpecifically prercribed in this Act
and all other power8 nece88ary or
convenient to carry out it8 te8penri-
bilitie8. V.T.C.8. art. 4477-5, S 3.01.
In addition, the Clean Air Act provide8 that
[elxcept a8 provided in 8Ub8eCtiOn8 (c),
Id), (e) and (f) of thie rection, the
rule8 and regulation8 may not specify
any particular method to be ured to
control or abate air pollution, nor the
type, derign or method of in8tallation
of any equipment to be ueed to control
or abate air pollution, nor the type,
de8ign, or method of in8tallation or
type of conrtruction of any manufacturing
procerre8 or other kind8 of equimnt.
V.T.C.S. art. 4477-5, S 3.10(b).
You advice that many facilitierr8erve a dual purpo8e.
One purpore 18 the production of d 8alable product, which
production would incidentally reeult in the creation of air
pollution. The other purpoee 18 the abatement and control
of that pollution. Should the Board determine that a dual
purpoee facility 18 the most practical and economically
feaeible mean8 of accomplishing the control of air pollu-
tion, we believe that it may further that purpose by partial
certification of the facility. The prohibition of eection
3,10(b) 8UppOrt8 thi8 COnClU8iOn, since a refunal of partial
certification to a dual purporrefacility would neceeearily
cause the Board to epecify a *particular method to be ured
to control or abate air pollution."
you aleo a8k whether 8 facility which require8 a con-
otruction permit under section 3.21 of the Clean Air Act may
be certified a8 a "control facility.n No provision of the
Clean Air Financing Act indicate8 that there 18 any relation-
8hip between certification and the i88uance of oonrtruction
permits. Thu8, it 18 Qur opinian that a facility may be
certified a8 a "control facility" .without regard to it8
poeture under oeotion 3.27 of the Clean Air Act.
Q. 3341
. -
The Honorable Charlee R. Barden - page 5 (H-792)
Your final question is whether the Board may certify a
facility deoigned to reduce emissions from a proposed, but
not yet constructed, 8ource of air contaminante. We note
the absence of any direct or implied prohibition against the
certification of proposed facilities. Furthermore, the
statement of purpose contained in the Clean Air Financing
Act argues strongly for the view that the Legislature was
concerned about future, as well as present, 8ources of air
Rollution:
It ie hereby determined by the legis-
lature and also declared to be the policy
of this state that the control of air pollu-
tion is essential to the well-being and sur-
vival of its inhabitants and the protection
of the environment, and that specifically
the control, prevention, and abatement of
air pollution are and will
-- be for the
specific purpose of the coneervation and
development of the natural resources of
the state, within the meaning of Article
XVI, Section 59(a), of the Texas Coneti-
tution, through the prevention of further
damage to or destruction of the environ-
ment, resulting in further conservation
and development of such natural re8ourcee.
V.T.C.S. art. 4477-5a, 5 2(b). (hnphaSi.8
added).
Accordingly, we conclude that the Board may certify as a
"control facility" a facility designed to reduce emissions
from a proposed, but not yet constructed, Bource of air
contaminants if the source is likely to result in air pollu-
tion in the absence of the control facility.
SUMMARY
The Texas Air Control Board may certify
a8 a "control facility" only thoee facil-
ities which are "deeigned to reduce or
eliminate air pollution," as that term
Q. 3342
. . .
The Honorable Charlee R. Barden - page 6 (H-792)
18 defined in the Texas Clean Air Act,
article 4477-5, V.T.C.S. The Board may
certify a portion or percentage of a
facility a8 a "control facility." In
addition, it may certify a facility
which require8 a conetruction permit,
as well a8 a facility designed to reduce
emisaione from a proposed, but not yet
conetructed, 8ource of air contaminante.
Very truly youre,
Opinion Committee
jwb
Q. 3343