            TBE      ATTORNEY     GENERAL
                          OP ?JYExAs
                      AUSTIN. T-8 787Xl




                               January   30.    1974



The Honorable Charles   R. Barden, P. E.               Opinion No.    H- 222
Executive Director of the Texas Air
     Control Board                                     Re:   May the Texas Air
8520 Shoal Creek Boulevard                                   Control Board enforce
Austin,  Texas 78758                                         federal regulations and
                                                             related questions?
Dear Mr.   Barden:

       The Environmental     Protection Agency of the United States has
indicated that it will issue regulations  requiring a permit to construct
or operate an “indirect source” of air pollution.    The proposed regula-
tion is found in 38 Fed. Reg. No. 208, October 30, 1973, p. 29895.        It
will amend h 52.‘2~2 of Title 40 of the Code of Federal Regulations   to add
a paragraph (b) which will provide in its subparagraph     (11) that:

            “The Governor of the State shall designate the State
            or Local agency which will carry out thins regulation
            in each area of the State within 30 days from the date
            of final promulgation.  . . .‘I

       Throughout the regulation,   responsibilities     are placed upon the
“Director”   who is defined in subsection   (I) (iii) as “the director of the
State or local agency designated by the Governor of the State to carry
out this paragraph. ” Section 52.02(d) of Title 40,of the Code of Federal
Regulations  as amended in May,     1972,   (37 Fed.     Reg.   No.   105, May 31,
1972, p. 10846) provides:

                    “All approved regulatory    provisions   of beach
             plan are incorporated   by reference    in this part.
             Regulatory provisions    of a plan approved or pro-
             mulgated by the Administrator     are enforceable     by
             the Administrator   and the State, and by local agencies
             in accordance   with their assigned responsibilities
             under the plan. ”




                                    p.   1036
The Honorable     Charles   R.   Barden,     page 2   (H-222)




       Your questions    to us are:

              “(1) Can a state agency establish an administrative
              system to perform functions required by federal
              law, i.e. issuing permits to complex sources,      if
              such functions are not authorized  by state legislation?

              “(2) Can a state agency initiate legal proceedings
              to enforce compliance  with federal regulations?

              “(3) Is the Attorney General’s  office of the State
              of Texas obligated to represent   the Texas Air
              Control Board if it decides to initiate legal proceed-
              ings to enforce compliance   with federal regulations?

              “(4) Can attorneys employed by the Texas Air
              Control Board and paid by the State of Texas repre-
              sent the Texas Air Control Board if it initiates legal
              proceedings    to enforce compliance with federal
              regulations?  I’

       The Texas Air Control.Board        is created by the Texas Clean Air Act,
Article 4477-5,   V. T. C.S.  (Acts 1967, 60th Leg.,         p. 1941, ch. 727).     The
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.
State v. Jackson,    376 S. W. 2d 341 (Tex. 1964).        And see Brown Express,
Inc. v. Railroad Commission,        415 S. W. 2d 394 (Tex.       1967); Cobra Gil &
Gas Corporation v. Sadler,      447 S. W. 2d 887 (Tex. 1968).          Thus, to deter-
mine the power of the Board we must Look to the State statutes and not the
federal regulations.    Subchapter C of Article 4477-5         prescribes     the powers
and duties of the Board.     By  f 3.01  it is to administer     the  provisions   “of
this Act” and to establish the quality of air resources          “as provided in this
Act. ” It “shall seek” the accomplishment          of the purposes “of this Act. ”
Section 3.02 requires    the Board to prepare and develop a general,             compre-
hensive plan for control of the air resources         of the State.    Section 3.03
authorizes  it to require the submission       of information.      Section 3.04 would
allow it to conduct research    in the discharge of its duties “under this Act.”
Section 3.06, authorizes    members     and employees      of the Board to enter public




                                        p.   1037
The Honorable    Charles   R.   Barden,   ,page 3   (H-222)




or private property called for by the Act.        By 5 3.07 the Board is autho-
rized to institui:e court actions to compel compliance       with the provisions
“of this Act or the rules,     regulations,  orders,  variances   or other deci-
sions of the board. ” It may enter into contracts and execute         instruments
that are necessary    or convenient to the exercise     of the Board’s powers
for the performance     of its duties. Section 3.08.

       The Board is empowered ,to make rules and regulations     “consi.stent
with the general intent and purposes of this Act” but before adopting any
rules it is required to hold a public hearing after published notice, and
no rule or ~regulation or amend,ment or repeal thereof shall become effective
until approved by at least five members.of   the Board.   Section 3.09.

      Section 3.19(4) provides that tile Board shall “advise,    consult and
cooperate” with agencies of the Stat.e, with industries,    with other states
“and the federal government.     . . .I’ Sections3. 27 and 3. 28 authorize the
Board to issue permits to persons who plan to construct new facilities       or
to modify existing facilities which may emit air contaminants       and, where
a permit to construdt is issued,    to issue an operating permit.

       In our opinion, the authority of the Texas Air Control Board is
limited to those acts which it is empowered to perform by the foregoing
sections.    Even though $3.19 does require the Board to “advise,      consult
and cooperate” with the federal government,      nowhere do we find any
authority for the Board to administer   the federal law or to perform func-
tions required by the federal Law. Since your first question specifically
asks whether you may perform functions which “are not authorized by
state legislation, ” our answer must be in the negative,   i. e. that you may
not perform functions required by federal law unless and until authorized
by state law to perform them.

       Your second question asks whether a state agency may        initiate legal
proceedings    to enforce compliance  with fe~deral regulations.    Limiting our
answer to your    agency and to these federal regulations,    our answer must
be that it may not.. There may be other agencies and other circumstances
under which a state agency may bring legal proceedings        to enforce compliance
with federal regulations   but we do not find any authority in your agency to do
SO.  This is not to say that if the federal regulation is one which your agency




                                      pe 1038
       The Honorable    Charles    R.   Barden,      page 4      (H-222)




       itself would be authorized to issue,          it may not issue      an identical   regu-
       lation and enforce it as its own.

             Our answer     to the first   two questions      answers      the third and fourth.

                                           SUMMARY

                           The Texas Air Control Board, being a creature
                    of the Legislature,    is limited in its authority granted
                    it by statute.   It has no authority,    absent legislative
                    authority,   to enforce or to administer     a proposed regu-
                    lation of the Environmental      Protection Agency which is
                    not within its statutory jurisdiction     and which it has not
                    adopted as its own regulation.

                                                  Very   truly   yours,




                                                  Attorney    General      of Texas

   APPTVED:




</XY           F.   YORK,    Fiy    Assistant




   DAVID M. KENDALL.               Chairman
   Opinion Committee




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