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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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