           THE       ATITCBRNEY         GENEKAL
                          UDF %?EXAS




Dr. Herbert McKee                 Opinion No. M-665
Chairman
Texas Air Control Board           Re:   Authority of the
1100 W. 49th Street                     Attorney-General and
Austin, Texas                           local governments to
                                        institute legal ac-
                                        tion based'solely on
                                        a violation   of Texas
                                        Air Control Board
                                        rules, regulations,
Dear Doctor McKee:                      variances or orders.
     Your inquiry Is whether the Attorney General's office,
after request from the Texas Air Control Board, Is author-
ized to institute legal action based on a violation of Texas
Air Control Board rules, regulations, variances or orders.
You also ask whether local governments are authorized to ln-
stitute like actions. Our answer to both Inquiries Is
"yes"* Our discussion will deal with the Attorney ,General's
authority, but the same reasoning applies to local govern-
ments' authority.
     The pertinent law Involved In your Inquiry is the Texas
Clean Air Act, Article 4477-5, Vernon's Civil Statutes
(1969). The regulations Involved are Texas Air Control
Board Regulations I, II, III, IV, and V, adopted pursuant to
Section 3.09 of the Texas Clean Air Act. The rules brought
into issue are the Procedural Rules, General Provisions, and
all other Texas Air Control Board rules adopted pursuant to
Section 3.09. The variances In question are those granted
by the Board under authority of Section 3.21; and the or-
ders to be considered are those made by the Board under
authority of Section 3,E of the Texas Clean Air Act.
     The question answered here arises because of the lan-
guage of the rohibltlve provision of the Texas Clean Air
Act, Section E .Ol, and the deflnltlon of "air pollution"
found in Section 1.03(3). "Air Pollution" is defined as ..-
"the presence in the atmosphere of one or more air contaml-
nants or combinations thereof, in such concentration and of


                             -3175-
Dr.   Herb&t   MciCee,   page 2 (~-665).




such duration as are or may tend to be Injurious      to or to
adversely affect  human health or welfare,   animal life,   ,veg-
etatlon or property, o.r as to Interfere   wlth.the.normal     use
and enjoyment of animal life, vegetation    or property”;    :
Thus, to prove “air pollution”   it is necessary to: prove ln-
jury, adverse effect or Interference    with property use or a
tendency thereto caused by the air contaminants.
      ,Thla is, significant     because Section 4,01(a)     says that
no person may cause9 suffer,        allow or permit the’emlsslon
of air contaminants i.. ,uhloh causes or contributes           to .**
a condition    of ‘air poiiutlon”.        Consequently,   in order to
prove a violation      of Section    4,01(a),  It 18 necessary to
prove “air pollutlonW,      which requires     proof of injury or a
tendency to Injure or to adversely affect,           etc.
      However, this proof is not required in a ease brought
under Section 4.01(b).        This section prohibits  any person
to cause, suffers    allow or permit the emission of any air
contaminant D.~b,ln violation    of the Act or any rule. re ula-
tlon, variance or other order of the T%ks Air--c-H=-.  on ro
     d    Th Bo ds’e rules, regulations,      and orders are val+
ldaGoo.longeas :iey are based upon the concept of preventlori;
abatement, and eontrol of “air pollution”,        as that term is
statutorily   defined.
     Section 4.02(a)   authorizes    the Air Control Board to
cause a civil   &Ii 60 be lnetltuted     whenever it appears
that ,any person has# la, or threatens to violate      the Act or
aw                                                  of the B3arTI-a
And                                                  brought for
the Board by the‘Attorney    ffeneral,
       In the recent     oaae of Houston Sompreseed Steel     Corp.


entitled to an l&nation    agalnat ou
tlon II) “without the necessity   of proving toxicity  or ln-
jury or harm of any’klnd.   O&door burning without a
variance Is all that need be proved,”     In answer to a point



       *   This case has not yet reached pubIlkion          in South-
           western Reporter.
                               -3176-
Dr. Herbert   McKee, page 3 (M-665).


 of’ error that the definition  of “air ,pollutlon”   In the ‘A&
 was Inadequate and that the:flat~ prohibition     against out-
,door, burn,lng provided In Regulat,lon II was too vague to ap-
 ply,    the Court said at page 8 of Its oplnlo,n:
            “Until 1967 the basis of our laws regarding,
            pollution  was the nuisance ddctrine,    but ‘the
            emphasis of our newer statutes     is on regula-
            tory standards.     The science of air pollutlon
            control Is new and Inexact,     and these stand-
            ards are difficult    to devise, but If they are
            to be effective    they must be broad.   If they
            are too precise they will provide easy escape
            for thoae who wleh to circumvent ‘the law.”
The  Court expressly reviewed the’ definition of “air pollu-
tion” and pronounced It “clear and easily capable of
understanding. ”
      If the Boqd dldnot    have authority to proceed,ln
court to prevent violations   of their rules, regulations,
variances,  or orders,  such rules,  regulations,  etc., would
be meaningless,  empty pronouncements.     The Noueton Court
recognized  this In saying, at p. 4 of its opinion:
            “The; Board haa no enforcement power of ltq
            own. The only effective    11168238of securing
            compliance with the Act Is by instituting
            suits for injunctions   OF penalties   or both.
            See. 4.02(a) provides that the district
            court Is the proper forum for enforolng the
            Act and the Bbarh ‘8 orders. ” No&on       -



        !Fhls is not to say that the Texas Air Control Board
 should not malce orders and determinations,        or.that when
,made, such orders are meaningless;         but It Is ‘to say th,at
 once made, such orders can be enforcred only by the Courts
 of the State.        And, aa In a suit based on a regulation     via-
 latlon,    the only Issue for decision      by the Court In a vault
 based on an order vlolatlbn        1s whether or notthe    defendant
 violated    the order.     There is no Issue of intentional     or
 willful    violation    unless the statute   makes such an lngredl-
 ent of the cause of act&n.          State v. Harrlngton,   407 S.W.



                                 -3177-
Dr. Herbert   McKee, page 4 (M-665).

2d~467 (%X6 Sup. 1966).         The order, like a regulation,        is
presumed valid If made within the scope of authority            leg-
ally delegated.    Pacific     State Box and Basket Co. v, White,
296 VS., 176,   18 , lob      30 s ct       139  60 L Ed 138, TJl7
A.&R.  853 (1935       Th& eon-v         6oneoildated  &8 Utllltiea
Cor@iwation, 300 %U.S. ---3?em      (i93?J.

      By this opinion,    we should not be understood aa saying
that nulaanae evidence or evidence of Injury or harm is no’
longer valid or helpful evidence.       It la valuable evidence,
because experienee with courts and juries has taught that
much stronger Judgments and..,penalties can be obtained by
enforcement agencies when the very human element of nul-
aanae evidence ia Incorporated      Into an air pollution     suit.
Such evidence may likewise becose,lmportant        when the de-
fendant has attacked the, validity~ of the Board’s order or ‘,’
regulation    andadduced evidence,    if believed,    which would
be eufflcient    to eustain a ,findlng and judgment that the
order or regulation     was not~based upon the concept of pre-
vention,   abatement, and control of air pollution.         Rorever,
that type of evidence la not an eeaentlal        ingredient   of,a
cau8e of action for violation      of a valid rule or regulation.
      We have, -therefore,   answered th& first, question ,ln the
affirmative:,   The answer to your question conaernlng local
 overnments” autiiorfty    la Ct$s,oaffitiative,     beaeiuse Section
&.03 of the’ Act ,Mthorlzes    il&al .governments to ;inatltute
milts “In the Bame manner aa the Board“.           Thla etatutory
language makee”loca1 government&agents           of the State per-
forming governmental funatione,                         v. Ideal
Cement Co up ~292F.Supp. 956 (g;D,



            The Attorney general,      upon request of the
            Texas Air, Control Board, .ls authorized      to
            Institute    legal action based eolely on a
            violation    of Texae Air Control Board rules,
            regulationa,     varlaneea or order.8 o A local
            government has the same authority       to ineti-
            tute legal action without Board approval.




                                 -3178-
Dr. Herbert    McKee, page 5 (M-665).




Prepared by Richard W. Chote
Asalstant Attorney General

APPRGVEB:
OPINION COMMITTEE
Kerna Taylor, Chairman
Bill Allen, Co-Chairman

Tom Bu&lington
Mel Corley
Fieher Tyler
Ray McGregor
MEADEF, GRIFFIW
Staff Legal Assistant
NOLAWHITE
First Aakiietant




                                -3179-
