c

                   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




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