I   I


                   THEATTORNEYGENERAI,
                               OF    TEXAS
                           AUSTIN.   TXXAS   78711

                             April 18, 1977




        The Honorable Charles Barden          Opinion No. H-981
        Executive Dixector
        Texas Air Control Board              Re: Authority of the Air
        8520 Shoal Creek Boulevard           Control Board to grant
        Austin, Texas 78750                  variances under the Clean
                                             Air Act.
        Dear Mr. Barden:
             You have requested our opinion concerning various sections
        of the Texas Clean Air Act, V.T.C.S., art. 4477-5. Your questions
        are:

             (1) Whether the Texas Air Control Board can grant
                 variances from the requirements of Sections
                 3.27 and 3.28 of the Texas Clean Air Act and
                 Texas Air Control Board Regulation VI for a
                 new facility.

             (2)   Whether requiring a "new source" to comply with
                   the permit requirements of the Texas Clean Air
                   Act and the Board's regulations can result in
                   an arbitrary or unreasonable taking of property,
                   or in the practical closing and elimination of
                   any lawful business, occupation or activity.
             Section 3.21 of the Act provides:
                   The board may grant individual variances
                   beyond the limitations prescribed in this Act
                   or in the rules and regulations of the board
                   whenever it is found, upon presentation of
                   adequate proof, that compliance with any pro-
                   vision of this Act, or any rule or regulation
                   of the board, will result in an arbitrary
                   and unreasonable taking of property, or in
                   the practical closing and elimination of any
                   lawful business, occupation or activity, in
                   either case without sufficient corresponding
                   benefit or advantage to the people.




                                      p. 4084
The Honorable Charles Barden - page 2   (H-981)


     Sections 3.27 and 3.28 of the Texas Clean Air Act require
persons constructing new facilities or modifying existing
facilities to apply for and receive construction and operating
permits from the Board if those facilities may emit air con-
taminants into the air of this state. The Act defines a new
source in Section 1.03(E) as:
         [Alny stationary source, the construction
         or modification of which is commenced after
         the effective date of this statute. . . .
     Section 3.27(b) requires an applicant to submit, with his
application for a construction permit, plans and specifihations
to enable the Board to determine whether the proposed con-
struction will comply with the applicable air control standards
and the intent of the Texas Clean Air Act. Section 3.27(c)
provides as follows:
          If the board finds that the emissions from
          the proposed facility will contravene these
          standards or will contravene the intent of
          the Texas Clean Air Act, it shall not grant
          the permit. . . .
     Similar provisions appear in Section 3.20.   Section 3.28(b)
provides as follows:
            When all stipulations.of the construction per-
          mit are met and the operation of the facility
          will not contravene air pollution control
          standards set by the board or will not contra-
          vene the intent of the Texas Clean Air Act, the
          board shall issue within a reasonable time the
          operating permit.
     Your first question is whether section 3.21 applies to
permits issued pursuant to sections 3.27 and 3.20. Section
3.21 was a part of the original 1967 act whereas sections
3.27 and 3.28 were enacted in 1971. Generally, an amendment
is construed in harmony with existing provisions of the act
amended: the provisions operate naturally upon each other.
Schlichting v. Texas StatesBoard of Medical Examiners, 310
S.W.Zd 557 (Tex. 1958);'American Surety Co. of New York v.
Axtell Co., 36 S.W.Zd 715 (Tex. 1931). Of course, this
principle applies only when there is no conflict between the
amendment and the existing provisions. In our view there is




                        p. 4085
    .   .   _


I




                The Honorable Charles Barden - page 3                  (H-981)


                no conflict between section 3.21 and sections 3.27 and 3.28.
                The latter two provide "limitations" and section 3.21 states
                that "[tlhe board may grant individual variances beyond the
                limitations prescribed in this Act. . . ." There is no language
                contained in sections 3.27 and 3.28 which would indicate that
                section 3.21 is inapplicable thereto. Accordingly, in our
                opinion the Board may grant variances from the requirements of
                sections 3.27 and 3.28.where the standards contained in section
                3.21 are satisfied.
                     Your second question is essentially whether a "new source"
                can satisfy the standards contained in section 3.21. As noted
                above a "new source" may be one which is either constructed
                or modified after the effective date of article 4477-5. A
                variance is authorized by section 3.21 only when compliance

                                 will result in an arbitrary and unreasonable
                                 taking of property, or in the practical
                                 closing and elimination of any lawful busi-
                                 ness . . . without sufficient corresponding
                                 benefit or advantage to the people.

                            It is difficult for us to perceive how a facility which
                is yet to be constructed could satisfy the variance requirements
                contained in section 3.21. The regulations of the Board are
                invalid if they are arbitrary or unreasonable. Sec. 6.01(e).
                It is well established that the enforcement of valid health reg-
                ulations does not result in an arbitrary or unreasonable taking
                ,YF  ..rrr,Tnr+,r     Nnrthwectarn
                                       ..---..---___     _- T~m-drv
                                                            --  -___ v.
                                                                      . _ C!it-v
                                                                          ___~   of
                                                                                 -- Des
                                                                                    -   Moines, 239
                ;:S:-;::*i;916); Nunley v. Texas Animal Health Commission, 471
                S.W.2d 144 ITex. Civ. ADD. -- San Antonio 1971, writref'd n.r.e.1:
                Houston-Compressed Steei-Corp. v. State, 456 SiW.2d 768 (Tex. Civ‘.
                APP- -- Houston [lst Dist.] 1970, no writ); Consolidated Rock
                Products Co. v. City of Los Angeles, 370 P.2d 342 (Calif. 1962),
                -   .
                            A;cmlA
                        VI~,LL   u
                                   271
                                     _I+
                                             ,T !z
                                           V.“.   4-
                                                     16 llQfi3
                                                       ,----).us,           compliance with the act
                 or  with valid rules and requlations by a facility yet to be con-
                 strutted would not, in our-opinion, result in an arbitrary or
                 unreasonable taking of property. Nor can we understand how the
                 second test of section 3.21 is applicable to facilities which are
                 to be constructed, for at the time of the permit application,
                 there would be no business in existence which could be prac-
                 tically closed. -              See Europak, Inc. v. County of Hunt, 507 S.W.2d
                  884 (Tex. Civ. App. -- Dallas 1974, no writ): Attorney General
                 Opinion H-455 (1974).




                                                             p. 4086
                                                              -   I




The Honorable Charles Barden - page 4     (H-981)


     Sections 3.27 and 3.28 also require construction and
operating permits for "new sources" which are modifications
of.existing sources. We cannot say as a matter of law that
no modification cou'ldever be entitled to a variance in order
to prevent the "practical closing and elimination of any lawful
business." For example, a source may be required to change
fuels in order to avoid closing its operations, and it may
not be feasible to attain the same discharge level with the
new fuel. It is within the power of the Board to determine
whether such modifications qualify for a variance under
section ~3.21. Of course, an applicant for a variance must
show that compliance with the regulations would result in a
"practical closing" of the business or activity and that'
there is not "sufficient corresponding benefit or advantage
to the people."
                         SUMMARY
            Section 3.21 of article 4477-5 is applicable
            to sections 3.27 and 3.28 thereof. A facility
            which is to be constructed could not'meet the
            standards for a variance under section 3.21.
            Whether a modification of an existing facility
            is entitled to a variance is within the dis-
            cretion of the Air Control Board under the
            standards provided in section 3.21.
                                 Very truly yours!

                                      Jc&&z
                                 JOHN L. HILL
                                 Attorney General of Texas
APPROVED:



                          Assistant




Opinion Committee




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