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Mr. Charles R. Barden, P.E. Opinion No. M-1282
Executive Secretary
Texas Air Control Board Re: Authority and Jurisdiction
820 East 53rd Street of Texas Air Control Board
Austin, Texas 78751 over odor from feed lot
solid waste.
Dear Mr. Barden:
Your request for our opinion reads:
"I hereby request an official interpre-
tation of the Texas Air Control Board's
jurisdiction over air pollution (i.e., odor)
from agricultural wastes which are under
the authority of the Texas Water Quality
Board. More specifically, can this agency
impose restrictions on the stockpiling of
manure in order to prevent or reduce odors?"
We restate your question as follows:
(1) Does the Texas Air Control Board
have authority to control the stockpiling
of feed lot solid waste by a commercial
cattle feed lot as an incident to preven-
tion or reduction of air pollution?
(2) Does the Texas Air Control Board
have authority to prevent or reduce odors
from feed lot solid waste stockpiled by a
commercial cattle feed lot?
We answer both of your questions "Yes", as more fully set
forth in this opinion.
We must harmonize thelauthority of the Texas Air Control
Board under Article 4477-5 , the Texas Clean Air Act, and the
authority of the Texas Water Quality Board under the Texas
Water Code and Article 4471-5, the Solid Waste Disposal Act.
1 All references to Articles one to Vernon's Civil
Statutes, unless otherwise stated.
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Mr. Charles R. Barden, P.E., page 2 (M-1282)
The authority of the Texas Air Control Board to control
emission from certain facilities of any air
",;ny;y;;n;;5 into the air of this State is expressly granted
by Sets. 3.21 and 3.28 of Article 4477-5. In their relevant
portions these sections read as follows:
"Sec. 3.27. (a) Any person who plans to
construct any new facility or to engage in
the modification of any existing facility
which may emit air contaminants into the air
of this State shall apply for and obtain a
construction permit from the board before
any actual work is begun on the facility..."
"Sec. 3.28. (a) If a permit to construct
is issued, then within sixty days after the
facility has begun operation, the person in
charge of the facility shall apply for an
operating permit..."
. . . .
"(e) A permit issued under this section
may be revoked by the board if the board
later determines that any of the terms of
the permit are being violated or that emis-
sions from the facility contravene air pol-
lution control standards set by the board
or contravene the intent of the Texas Clean
Air Act.
"(f) The board or the executive director
may seek an injunction in a court of compe-
tent jurisdiction to halt the operation of
any facility which is operating without a
permit issued under this section or which
is operating
. in violation of the terms of
a permit Issued under this section."
2 The term air contaminants and other relative terms are
defined in Sec. 1.03 of Art. 4477-5.
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Mr. Charles R. Barden, P.E., page 3 (M- 1282)
These statutory provisions apply only to a new facility
or an existing facility3 which is to be modified.4 Our
opinion is that a commercial feed lot is a facility within
contemplation of these Sets. 3.27 and 3.28.
We hold that Sets. 3.27 and 3.28 of Article 4477-5 ex-
pressly grant to the Texas Air Control Board, with reference
to these types of facilities, authority to issue the permits
necessary to both control the stockpiling of feed lots' solid
waste and to prevent and reduce the odors therefrom, as may
be necessary in its judgment to protect the air resources of
this State from pollution.
The Texas Air Control Board has broad powers in the
control of air pollution other than in the issuance of these
permits. It is the designated state agency for control of
air pollution. This is manifest from the several provisions
of the Texas Clean Air Act, Article 4477-5, quoted in the
footnote.5 These provisions would appear to clothe this
Board with the principal control over air pollution from
every source.
3 A facility, in general, is something which is built
or installed to perform some particular function; the term
has been held to cover a bridge, a county jail, a branch
bank, etc. See 16 Words and Phrases, Facilities.
4 The term modified is defined in Sec. 1.03 of Art.
4477-
2. Sec. 1.03 contains definitions.
Sec. 1.05 reads: "The Texas Air Control Board is the
state air pollution control agency. The board is the
principal authority in the state on matters relating to
the quality of the air resources in the state and for
setting standards, criteria, levels and emission limits
for air content and pollution control."
Sec. 3.01 reads: "The board shall administer the
provisions of this Act and shall establish the level
of quality to be maintained in, and shall control the
quality of, the air resources in this state as provided
in this Act. The board shall seek the accomplishment
of the purposes of this Act through the control of air
contaminants by all practical and economically feasible
methods consistent with the powers and duties of the
board. The board has the powers and duties specifically
prescribed in this Act and all other powers necessary
or convenient to carry out its responsibilities."
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Mr. Charles R. Barden, P.E., page 4 (M- 1282)
On the other hand, an apparent conflict arises wherein
Sec. 3 of Article 4477-7, the Solid Waste Disposal Act, ex-
pressly designates the Texas Water Quality Board and the
Texas State Department of Health as the state agencies "...
with respect to the collection, handling, storage and disposal
of... solid waste.6 This Sec. 3 does require that they "con-
sult" " . ..with the Texas Air Control Board with respect to
the air pollution control and ambient air quality aspects,..."
This apparent conflict is resolved, in our opinion, in
favor of concurrent or overlapping authority in the Air
Control Board on the one hand and in the Water Quality Board
and the Department of Health on the other, relating to air
pollution, by Sec. 10 of Article 4477-7 which reads as follows:
Sec. 3.02 reads: "The board shall prepare and develop
a general, comprehensive plan for the proper control of
the air resources of the state."
Sec. 3.03 reads: "The board is authorized to require
the submission of information by persons whose activi-
ties cause emissions of air contaminants to enable the
board to develop an inventory of the emissions of air
contaminants in the state."
Sec. 3.09, subsection (a), reads: "The board has the
power, in accordance with the procedures in this section,
to make rules and regulations consistent with the gen-
eral intent and purposes of this Act and to amend any
rule or regulation it makes."
Sec. 3.12, in its more pertinent portions reads: (a)
The board is authorized to enter orders and determina-
tions as may be necessary to effectuate the purposes
of this Act....
(b) If the board determines that air pollution
exists, it may order such action as is indicated by the
circumstances to control the condition...."
Sec. 4.01, subsections (a) and (b) read: "(a) Except
as authorized by a rule, regulation, variance or other
order of the board, no person may cause, suffer, allow
or permit the emission of any air contaminant or the
performance of any activity which causes or contributes
to, or which will cause or contribute to, a condition
of air pollution.
(b) No person may cause, suffer, allow or permit
the emission of any air contaminant or the performance
of any activity in violation of this Act or of any rule,
regulation, variance, or other order of the board."
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Mr. Charles R. Barden, P.E., page 5 (~-1282)
"This Act is cumulative of and supple-
mental to any other laws and parts of laws re-
lating to the same subject and does not repeal
those other laws or parts of laws. Nothing in
this Act diminishes or limits, or is intended
to diminish or limit the authorit of the
department,theaoard,nTexasrControl
Board, or local governmv erformrng any
of the powers, functions, and dutres vested rn
those governmental entities by other laws."
(Emphasis added.)
The policy intent of the Legislature in enacting Article
4477-7 is stated in its Section 1 as follows:
II. ..It is the policy of the state and the
purpose of this Act to safeguard the health,
welfare, and physical property of the people
through controlling the collection, handling,
storage, and disposal of solid wastes."
This Section 1 does not specifically mention air, but Sec. 10
does specifically state that nothing in Article 4477-7 limits
the authority, power, function or duties of the Air Control
Board.
The exercise by the Air Control Board of concurrent
jurisdiction with these other agencies over the stockpiling
of feed lot solid waste in the prevention and control of pol-
lution from these wastes harmonizes and makes wholly effective
all the powers granted to each of these agencies in their
respective principal fields of control.
6 Solid waste, as defined in Sec. 2 of Art. 4417-7
includes feed lot solid waste.
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Mr. Charles R. Barden, P.E., page 6 (M-1282)
SUMMARY
The Texas Air Control Board has concurrent
jurisdiction with the Texas Water Quality
Board and the Texas State Department of
Health in the control of the stockpiling
of feed lot solid waste by a commercial
cattle feed lot to prevent or reduce odors
therefrom.
Prepared by M. Lynn Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
John Reeves
Ronald S. Driver
Robert Lemens
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion