                  ?BfEATTQ
                                 OFTEXAS




The Honorable     Charles   R.    Barden,     P. E.      Opinion     No.   H-   177
Executive   Secretary
Texas Air Control     Board                              Re:    Point at which samples
820 East 53rd Street                                            are to be taken to
Austin,   Texas 78751                                           determine   emission of
                                                                hydrogen  sulfide
Dear   Mr.    Barden:

       Your    opinion   request~asks   the following    question:

               “For purposes     of property   line sampling    in accordance
               with the Rules and Regualtions       of the Texas Air Control
               Board,   if an oil company owns the oil and gas leasehold
               rights for a certain tract of land, is that entire tract
               under common control or ownership          of the oil company?
               Or, in the alternative,     is only the land actually    being
               used for oil and gas production      at a particular   point in
               time under the control     or ownership    of the company?”

        The Texas Clean Air Act (Article     4477-5,  Vernon’s   Texas Civil
Statutes)   establishes  that The Texas Air Control    Board’is to administer         its
provisions.     (Article 4477-5, V. T. C. S., Subchapters   B and C).

      Section 3.09(a) of the Act gives the Board authority     to make rules
and regulations   consistent   with the intent and purposes of the Act and to
amend them.     It is provided   in $ 3.09(b):

                      “Before    adopting      any rules and regulations,   or any
               amendments      or repeal      thereof,  the board shall hold a
               public hearing.     If the    rule~or regulation,   or amendment
               or repeal thereof,     will    have a state-wide   effect, notice . . .
               of the hearing    shall be     published  one time at least 20 days:




                                               p. 808
The Honorable        Charles       R.   Barden,   page   2 (H-177)




                 prior to the scheduled   date of the hearing    . . . .
                 The board shall also comply,      as appropriate,    with
                 the requirements   of , . . Article   6252-13, Vernon’s
                 Texas Civil Statutes.   . . . ”

        Subsection   3.10 (f) of the-Act specifically           authorizes   the Board     to
prescribe    “sampling   methods and procedures.               ”

       One of the areas of activity   of the Board in which it is authorized   to
make rules and regulations     is the “measurement    and monitoring    of the
emissions  of air contaminants     from any source.   . . .‘I (§ 3.06)

        Pursuant    to its statutory     authority,     the Board has adopted          Regulation
III entitled   “Control     of Air Pollution    from Sulfur Compounds.           ” Contained
in this regulation      are limitations     on the amount of hydrogen           sulfide which
may be emitted into the atmosphere,              with the provision        that determination
of the concentration       is to be in accordance         with the detailed procedures          in
Appendix     B.   Paragraph       IIIA provides    that  hydrogen     sulfide   emission    levels
are to be measured         at or beyond the “property          line. ” Rule 1.28 of the Gen-
eral Rules of the Board is:

                         “Property.    All land under common control    or
                 ownership     on which any source or combination    of sources
                 is located,    coupled with all improvements   on such land,
                 and all fixed or movable     objects on such land. . . . ”

        Your    letter   states:

                        “It has been the practice     of staff investigators
                 to conduct property     line sampling    at the fenceline
                 surrounding   individual    ‘tank batteries,   ’ feeling that
                 this is &e land actually     under control    of the particular
                 oil company. ‘I

          In our opinion The        Texas CleanAir      Act   represents    a reasonable     exercise
of the       State%      police         power    ‘designed          to protect      the    public
health.       and   welfare.            Williams         v.   .Sta’te,    176    S. W.,     Zd, 177




                                             p.   809
The Honorable     Charles    R.   Bard&.     page     3 (H-177)




Tex. Crim.   1943); State v. City of Austin,  331 S. W. 2d 737 (Tex.  1960);
12 Tex. Jur. 2d, Constitutional   Law,   $70, p. 415, et seq. and cases’ cited.

     We are also of the opinion that, in the Texas Clean Air Act, the
Legislature    has prescribed     sufficient  standards    to guide the Air Control
Board in its proceedings      and that delegation     to the Board of the:power       to
make rules and regulations        is not unconstitutional.      Williams    v. State,
supra; Housing Authority       of City of Dallas v. Higginbotham,          143 S. W. 2d
79 (Tex.    1940); Southwestern     Savings & Loan Association         of Houston v.
Falkner,    331 S. W. 2d 917 (Tex.     1960); 12 Tex. Jur. 2d, Constitutional
Law,§ $ 62, 65.

     The precise  question you have asked us calls for a factual deter-
mination which this office cannot make.     That determination    must be
made by your staff, based upon their particular     expertise  and their
familiarity  with the individual areas in question.

                                  SUMMARY

              The enactment       of the Texas Clean Air Act (Article
         4477-5.     V. T. C. S. ) and the authorization    to the Air
         Control    Board to adopt rules and regulations         for the
         measurement        of emissions    of contaminants    are con-
         stitutional.     Factual questions     arising  under those
         rules and regulations        must be resolved,in    the first
         instance,     by the Board,     and ultimately,   by the courts.

                                      Very    truly    yours,




                                      JOHN L. HILL


                                  cl  Attorney General            of Texas




                                           p. 810
The Honorable   Charles   R.   Barden,      page   4 (H-177)




APPROVEfI:




DAVID M. KENDALL,         Chairman
Opinion Committee




                                 p.   811
