The Honorable Charl,e8R. Barden         Opinion No. R-792
Executive Director
Texae Air Control Board                 Re: Reeponribility of
8520 Shoal Creek Boulevard              the Air Control Board in
Austin, Texar 70750                     certifying control  facil-
                                        itie   under tim Clean Air
                                        Financing Act b
Dear   Mr.   Barden:

     You have reque8ted our opinion on a number ef,que8tionr
regarding the Clean Air Financing Act, articl8 4477-Sa, V.T.C.S.
In thfr regard you a8kr
              1. What ir the rignifioance of the u8e
              of the term 'air pollution' rather than
              'air contaminant' in the definition of
              'control facilitie8?'
              2.  May the Board certify a pertion mz
              percentage of a facility a8 a "control
              facility?'
              3.   Uay the Board certify a8 a 'control
              facility' a facility whioh require8 a
              permit to oonrtructvnder rection 3.27
              of the Texar Clean Air Act, article
              4477-5,  V.T.C.S.?
              4.  Uay the Board certify a8 a 'oontrol
              faoility' e facility de8igned to reduce
              emirrion8 from a propored, but not yet
              oon8truotad, Iouroe of air oontaminanC8?




                              p, 3338
The &notable      Charlee R. Barden - page 2 (H-792)


     "Control facilitiee" is defined in the Clean Air
Financing Act a8
          facilitiee deeigned to reduce or elimi-
          nate air pollution which have been SQ
          certified by the Texae Air Control
          Board or by it8 executive eecretary a8
          may be authoriled by the TeXa8 Air
          Control Board.  V.T.C.S. art. 4417-5a,
          S   3(Z).

The Act 8tater that "air pollution * and "air contaminant"
hrve the 8ame meaning8 a8 in the Texae Clean Air Act.
Sec. 3(l). The Clean Air Act define8 "air contaminants"
ae
          particulate matter, duet, funie8,qa8,
          mi8t, Bmoke, vapor or odor, or any
          combination thereof produced by pro-
          ce88e8 other than natural. . . .
          ViT.C;S. art, 4477-5, S 1.03(l).
"Air pollution" means
          the pre8ence in the atmo8phere of one
          or more air contaminant8 or combination8
          thereof,     in ruch concentration and of 8uch
          duration     a8 are or may tend to be injurisu8
          to or to     advereely affect human health or
          welfare,     animal life, vegetation or property,
          or a8 to interfare'withthe normal use and
          enjoyment of animal lif,e,vegetation or
          property. ~. . . V.T.C.S. art. .4477-5,
          s 1.03(3).

     It ia cl8ar that the concept of "air pollution" i8
narrower in rcepe than that of 'air contaminant." In order
to qualify a8 “air pollution," an '8ir contaminant" murt be
prerrentin the atmellphere,and "in ruch concentration and of
ruoh duration" a8 "to be injurious to or to adverlrelyaffect
human health or welfare, animal life, vegetation or property,




                              Q. 3339
.   -




        The Honorable Charlea R. Barden - page 3 (H-792)


        or as to interfere with the normal uoe and enjoyment of animal
        life, vegetation, or property." Thu8, the Board is permitted
        to certify a8 a "control facility" only those facilities
        which are 'deeigned to reduce or eliminate air pollution,"
        as that term ie defined in the TeXa8 Clean Air Act.
             Your second querrtionaeks whether the Board may certify
        a portion or percentage of a facility a8 a "control facility.*
        Section 14 of article 4477-5a provide8:
                     In certifying facilitiee a8 control
                  facilitiee the Texas Air Control Board
                  may pre8oribe neceeeary criteria and,
                  procedure8 for euch certification and
                  can limit euch certification to con-
                  firming that the propored facility i8
                  intended for the purpose of controlling
                  air pollution. No certification a8 to
                  the adequacy of the facility or it8
                  expected performance or other epecifi-
                  cation8 shall be neceeeary.
        The 8tatute provides, in eection 13, that
                  [nlotwithetanding the provi8ion8 of thi8
                  eection, it in further provided that
                  nothing in thie Act shall in any way
                  limit or diminieh the power and authority
                  of the Texas Air Control Board or of a
                  local government to enact and enforce
                  rule8 and regulation8 and to carry out
                  other dutiee authorized by the TeXa8
                  Clean Air Act, a8 amended. . . .
        One of the duties which the Clean Air Act   impose8 upon the
        Board ie to
                  eeek the accomplishment of the purporer
                  o'fthi8 Act through the control of air
                  contaminant8 by all practical and eco-
                  nomically feaeible method8 coneietent
                  with the power8 and dUtie8 of the board.




                                    Q. 3340
.I   -




         The Honorable Charler R. Barden - page 4 (H-792)


                  The board ha8 the power8 and dutier
                  rpecifically prercribed in this Act
                  and all other power8 nece88ary or
                  convenient to carry out it8 te8penri-
                  bilitie8. V.T.C.8.  art. 4477-5, S 3.01.
         In addition, the Clean Air Act provide8 that
                  [elxcept a8 provided in 8Ub8eCtiOn8  (c),
                  Id), (e) and (f) of thie rection, the
                  rule8 and regulation8 may not specify
                  any particular method to be ured to
                  control or abate air pollution, nor the
                  type, derign or method of in8tallation
                  of any equipment to be ueed to control
                  or abate air pollution, nor the type,
                  de8ign, or method of in8tallation or
                  type of conrtruction of any manufacturing
                  procerre8 or other kind8 of equimnt.
                  V.T.C.S. art. 4477-5, S 3.10(b).
              You advice that many facilitierr8erve a dual purpo8e.
         One purpore 18 the production of d 8alable product, which
         production would incidentally reeult in the creation of air
         pollution. The other purpoee 18 the abatement and control
         of that pollution. Should the Board determine that a dual
         purpoee facility 18 the most practical and economically
         feaeible mean8 of accomplishing the control of air pollu-
         tion, we believe that it may further that purpose by partial
         certification of the facility. The prohibition of eection
         3,10(b) 8UppOrt8 thi8 COnClU8iOn, since a refunal of partial
         certification to a dual purporrefacility would neceeearily
         cause the Board to epecify a *particular method to be ured
         to control or abate air pollution."
              you aleo a8k whether 8 facility which require8 a con-
         otruction permit under section 3.21 of the Clean Air Act may
         be certified a8 a "control facility.n No provision of the
         Clean Air Financing Act indicate8 that there 18 any relation-
         8hip between certification and the i88uance of oonrtruction
         permits. Thu8, it 18 Qur opinian that a facility may be
         certified a8 a "control facility" .without regard to it8
         poeture under oeotion 3.27 of the Clean Air Act.




                                Q. 3341
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        The Honorable Charlee R. Barden - page 5 (H-792)


             Your final question is whether the Board may certify a
        facility deoigned to reduce emissions from a proposed, but
        not yet constructed, 8ource of air contaminante. We note
        the absence of any direct or implied prohibition against the
        certification of proposed facilities. Furthermore, the
        statement of purpose contained in the Clean Air Financing
        Act argues strongly for the view that the Legislature was
        concerned about future, as well as present, 8ources of air
        Rollution:
                     It ie hereby determined by the legis-
                  lature and also declared to be the policy
                  of this state that the control of air pollu-
                  tion is essential to the well-being and sur-
                  vival of its inhabitants and the protection
                  of the environment, and that specifically
                  the control, prevention, and abatement of
                  air pollution are and will
                                        --   be for the
                  specific purpose of the coneervation and
                  development of the natural resources of
                  the state, within the meaning of Article
                  XVI, Section 59(a), of the Texas Coneti-
                  tution, through the prevention of further
                  damage to or destruction of the environ-
                  ment, resulting in further conservation
                  and development of such natural re8ourcee.
                  V.T.C.S. art. 4477-5a, 5 2(b). (hnphaSi.8
                  added).
        Accordingly, we conclude that the Board may certify as a
        "control facility" a facility designed to reduce emissions
        from a proposed, but not yet constructed, Bource of air
        contaminants if the source is likely to result in air pollu-
        tion in the absence of the control facility.
                              SUMMARY
                  The Texas Air Control Board may certify
                  a8 a "control facility" only thoee facil-
                  ities which are "deeigned to reduce or
                  eliminate air pollution," as that term




                                   Q. 3342
. .   .




      The Honorable Charlee R. Barden - page 6   (H-792)




                   18 defined in the Texas Clean Air Act,
                   article 4477-5, V.T.C.S. The Board may
                   certify a portion or percentage of a
                   facility a8 a "control facility." In
                   addition, it may certify a facility
                   which require8 a conetruction permit,
                   as well a8 a facility designed to reduce
                   emisaione from a proposed, but not yet
                   conetructed, 8ource of air contaminante.
                                      Very truly youre,




          Opinion Committee
          jwb




                                    Q. 3343
