OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

April 23,2002 

Mr. Robert J. Huston 

Chair, Texas Natural Resource 

Conservation Commission 

P. 0. Box 13087 

Austin, Texas 7871 l-3087 

Opinion No. JC-0493 

Re: Applicability of new requirements for portable 

facilities and concrete crushers imposed by amendments 

to the Texas Clean Air Act (RQ-0460-JC) 

Dear Mr. Huston: 

On behalf of the Texas Natural Resource Conservation Commission (the “Commission”), 

you request an opinion about requirements for portable facilities and concrete crushers added in 200 1 

to the Texas Clean Air Act, chapter 382 of the Health and Safety Code. These provisions, Health 

and Safety Code sections 382.056(r)( 1) and 382.065, were included in House Bill 2912 of the 77th 

Legislature, which provided for continuing the Commission after review under the Sunset Act, 

chapter 325 of the Government Code. See Act of May 27,2001,77th Leg., R.S., ch. 965, $9 2.02, 

5.07,2001 Tex. Gen. Laws 1933, 1943,196l. 

Section 382.056(r)(l) provides that section 382.056, which requires applicants for certain 

permits to publish notice of intent to obtain a permit, does not apply to permit applications for “the 

relocation or change of location of a portable facility to a site where a facility permitted by the 

Commission is located if no portable facility has been located at the proposed site at any time during 

the previous two years.” TEX. HEALTH & SAFETY CODE ANN. 8 382.056(r)( 1) (Vernon Supp. 2002).’ 

You ask whether section 382.056(r)(l) may be interpreted to allow a portable facility to 

relocate to a site without notice if: “(a) the portable facility is moving to a site that contains a 

permitted facility, and (b) there has been a portable facility at that same site within the past two 

years.“2 Section 382.056(r)( 1) may not be interpreted to allow a portable facility to relocate to a site 

without notice if “(a) the portable facility is moving to a site that contains a permitted facility, and 

(b) there has been a portable facility at that same site within the past two years.” 

‘Because your q uestion relates only to section 382.056(r)(l), we will not consider section 382.056(r)(2), which 

exempts from the notice requirement “a facility located temporarily in the right-of-way, or contiguous to the right-ofway, of a public works project.” TEX. HEALTH & SAFETY CODE ANN. 4 382.056(r)(2) (Vernon Supp. 2002). 

2Letter from Duncan C. Norton, General Counsel, Texas Natural Resource Conservation Commission, to 

Honorable John Comyn, Texas Attorney General at 1 (Nov. 2,200l) (on file with Opinion Committee) [hereinafter 

Request Letter]. 
Mr. Robert J. Huston - Page 2 (JC-0493) 

You also ask about section 382.065 of the Health and Safety Code, which requires the 

Commission to prohibit a concrete crushing facility from being located within 440 yards of a 

residence, school, or place of worship. See id. 5 382.065. This requirement “does not apply to an 

existing concrete crushing facility.” Id. $382.065(b). You inquire about the meaning of “existing” 

facility in this provision. An “existing” concrete crushing facility is one that was physically present 

on the site as of the effective date of the provision, but this exemption does not apply to a concrete 

crushing facility that was located or operating illegally at the site on the effective date. 

The purpose of Health and Safety Code chapter 382 is “to safeguard the state’s air resources 

from pollution by controlling or abating air pollution and emissions of air contaminants.” Id. 

8 382.002 (Vernon 2001). To carry out this purpose, the Act requires that any person intending to 

construct, modify, or operate a facility that may emit air contaminants first apply to the Commission 

for an air quality permit, which must be granted before that person may construct or operate the 

facility. See id. 45 382.05 1 (a)(l), .05 1 S(a) (Vernon Supp. 2002); see also id. 6 382.055 (application 

for review and renewal of a preconstruction permit to determine whether authority to operate should 

be renewed). With certain exceptions, an applicant for a permit or permit amendment under section 

382.05 18 or a permit renewal review under section 382.055 “shall publish notice of intent to obtain 

the permit, permit amendment, or permit review not later than the 30th day after the date the 

commission determines the application to be administratively complete.” Id. 9 382.056(a). There 

are procedures for public comment following the publication of notice. See id. 8 3 82.056(g)-(o); see 

~Z~~HOUSECOMM.ONENVIRONMENTALREGULATION,BILLANALYSIS,T~~.H.B. 801,76thLeg., R.S. 

(1999) (describing amendments to Health and Safety Code section 382.056 and to other statutes on 

environmental permit programs administered by Commission). 

The Commission informs us that portable facilities include “concrete batch plants, trench 

burners and concrete and rock crushers.” See Request Letter, supra note 2, at 2. “Facility” for 

purposes of chapter 3 82 is “a discrete or identifiable structure, device, item, equipment, or enclosure 

that constitutes or contains a stationary source.” TEX. HEALTH & SAFETY CODE ANN. 8 382.003(6) 

(Vernon 2001); see also id. tj 382.003(12) ( a “source” is “a point of origin of air contaminants”). 

For a “facility” to be subject to the Texas Clean Air Act, emissions from it must be from a 

“stationary source.” See Request Letter, supra note 2, at 2; TEX. HEALTH & SAFETY CODE ANN. § 

382.003(6) (Vernon 2001). See also 42 U.S.C. 8 7602(z) (1994) (definition of “stationary source” 

in the Federal Clean Air Act). The emissions from portable facilities, while they are operating, are 

considered to be emissions from a stationary source. See Request Letter, supra note 2, at 2. 

Well before section 382.056(r)(l) of the Health and Safety Code was adopted, the 

Commission had developed a procedure governing the relocation of portable facilities. The 

Commission issued “portable permits” to cover portable facilities, and these permits generally 

included “ ‘relocation conditions’ which typically contain[ed] control requirements and future site 

authorization instructions for seeking approval from the appropriate regional office.“3 Pursuant to 

3See Memorandum from John Steib, Director, Air Permits Division, Office of Permitting, Registration & 

Remediation, Texas Natural Resource Conservation Commission, to Portable Facility Potential & Existing Applicants 

(continued...) 
Mr. Robert J. Huston - Page 3 (JC-0493) 

section 116.130(b), title 30 of the Texas Administrative Code, “[ulpon written request by the owner 

or operator of a facility” that had previously received a permit or special permit fi-om the 

Commission, the executive director or a designated representative could exempt the relocation of 

the facility from the notice requirements of section 116.130(a), if there were no indication that 

operation of the facility at the new location would significantly affect ambient air quality or would 

cause a condition of air pollution. 30 TEX. ADMIN. CODE 8 116.130 (2001); see also id. 8 

116.111(b)(2)( similar exemption from public notice requirements of 30 TEX. ADMIN. CODE ch. 39). 

Thus, under the Commission’s practice before section 382.056(r) was adopted, it was possible for 

a portable facility to be exempted from notice of relocation, depending upon the effect on air quality 

in the new location. Moreover, the request for change of location could be processed at one of the 

Commission’s regional offices instead of its headquarters in Austin. See Steib Memo, supra note 

3. See also Act of July 30,1991,72d Leg., 1 st C.S., ch. 3,§ 1.097(d), 1991 Tex. Gen. Laws 4,44-45 

(organization of regional offices). The adoption of section 382.056(r) required some significant 

changes in the Commission’s procedures for the relocation of portable facilities. 

Section 382.056(r) provides a statutory exemption from the public notice requirement for the 

relocation of certain portable facilities. The notice requirement does not apply to permit applications 

(1) the relocation or change of location of a portable facility to a 

site where a facility permitted by the cornrnission is located zf no 

portable facility has been located at the proposed site at any time 

during the previous two years; or 

(2) a facility located temporarily in the right-of-way, or 

contiguous to the right-of-way, of a public works project. 

TEX. HEALTH & SAFETY CODE ANN. 8 382.056(r) (Vernon Supp. 2002) (emphasis added). 

Thus, section 382.056(r)( 1) provides an exemption from the notice requirements of section 

382.056 when a portable source of air contaminants is moved to the location of a facility that has a 

permit, “if no portable facility has been located at the proposed site at any time during the previous 

two years.” Id. 8 382.056(r)( 1). It requires forrnal notice that a portable facility will relocate to a 

site on which a portable facility has operated within the last two years, although its presence there 

during that time presumably gave residents of the area de facto notice that a portable source might 

operate there. On the other hand, formal notice is omitted if no portable facility has been present at 

the site for over two years, even if no portable facility has ever been located there. Under these 

‘(. . .continued) 

(Sep. 1, 2001), available at http://www.tnrcc.state.tx.us/pennitting/airpenn/nsrqermits/files/portmemoOl .pdf 

[hereinafter Steib Memo]. See also Brief from Thomas J. Bond, Akin, Gump, Strauss, Hauer & Feld, L.L.P, to 

Honorable John Comyn, Texas Attorney General at 2-3 (Dec. 12,200l) (on file with Opinion Committee) [hereinafter 

Bond Briefl. 
Mr. Robert J. Huston - Page 4 (JC-0493) 

circumstances, residents would have little or no reason to expect that a portable source might begin 

to operate there. The exemption provision appears to be counter-intuitive. 

Section 382.056(r)( 1) resulted from a series of amendments to House Bill 2912. See H.J. OF 

TEX., 77th Leg., R.S. 1237-38 (2001). A committee substitute to House Bill 2912 by the House 

Committee on Environmental Regulation would have completely exempted from the notice 

requirement “the relocation or change of location of a portable facility to a site where a facility 

permitted by the commission is located.” See Comm. Sub. Tex. H.B. 2912,77th Leg., R.S., 8 2.24 

(2001) (provisions of Health and Safety Code section 382.056 redesignated as Water Code section 

5.673); see alsoHOUSE COMM.ONENVIRONMENTALREGULATION, BILLANALYSIS,COIIXII. Sub.Tex. 

H.B. 2912, 77th Leg., R.S. (Apr. 3, 2001). On second reading in the House, Representative 

Solomons proposed an amendment narrowing the comprehensive exemption from the notice 

requirement. See H.J. OF TEX., 77th Leg., R.S. 1237-38 (2001) (Amendment No. 23 by 

Representative Solomons). The amendment by Representative Solomons provided that the notice 

requirement would not apply to the relocation or change of location of a portable facility to a site 

where a facility permitted by the Commission is located “if the portable facilitv has been located at 

the current site for less than two years.” Id. (underlining in original). Representative Solomons 

explained that the amendment was intended to ensure that when portable facilities were moved 

between approved sites there would be some notice after a period of time, at least every two years. 

Debate on Tex. H.B. 2912 Before the House Comm. on Environmental Regulation, 77th Leg., R.S. 

(Apr. 19, 2001) (audio tape available Tom House Video/Audio Services). Representative Bosse 

amended Representative Solomons’ amendment to clarify the location provision and it was adopted 

as rewritten. See H.J. OF TEX., 77th Leg., R.S. 1237-38 (2001) (Amendment No. 24 by 

Representative Bosse); Debate on Tex. H.B. 2912, supra. Unfortunately, the provision that resulted 

from the two amendments did not accurately express Representative Bosse’s and Representative 

Solomons’ intentions4 

Under section 382.056(r)( 1) ofthe Health and Safety Code as enacted, the exemption applies 

if a portable facility had not been located at a site within a two-year time period. This language is 

contrary to Representative Solomons’ statement that there would have to be some notice at least 

every two years when a portable facility was moved between sites. Representatives Bosse and 

Solomons have written to the Commission stating that their intention underlying the amendment was 

to allow a portable facility to move from one permitted site to another permitted site within a twoyear period without having to give the notice otherwise required by section 382.056? Thus, the 

following revision of section 382.056(r)( 1) would reflect their intent: 

(r) This section [requiring notice] does not apply to: 

4See Letter from Honorable Fred M. Bosse (Sept. 7, 2001) and Letter from Honorable Burt Solomons 

(Sept. 10,200 1) to Jeff Saitas, Executive Director, Texas Natural Resource Conservation Commission, attached to Brief 

from Aileen M. Hooks, Baker Botts, to Honorable John Comyn, Texas Attorney General (Dec. 12,200l) (on file with 

Opinion Committee) [hereinafter Baker Botts BriefJ. 

‘See id. 
Mr. Robert J. Huston - Page 5 (JC-0493) 

the relocation or change of location of a portable facility to a site 

where a facility permitted by the commission is located if no [a] 

portable facility has been located at the proposed site at any time 

during the previous two years. 

In effect, you ask whether section 382.056(r) may be construed as if its language conformed to the 

above revision. 

It is “a cardinal rule of statutory construction” that the courts are to give effect to the intent 

of the legislature. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,284 (Tex. 1999). The 

process of statutory construction seeks to effectuate the “collective” intent or purpose of the 

legislators who enacted the legislation, found in the language of the statute. See Boykin v. State, 8 18 

S.W.2d 782, 785 (Tex. Crim. App. 1991) (en bane). Thus, a court construes a statute, first by 

looking at the plain and common meaning of the statute’s words. See Fitzgerald v. Advanced Spine 

Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); see also Fleming Foods, 6 S.W.3d at 284. 

When the meaning of statutory language is unambiguous, the courts will adopt, “with few 

exceptions, the interpretation supported by the plain meaning of the provision’s words and terms.” 

Fitzgerald, 996 S.W.2d at 865. The intent of an individual legislator, even a statute’s principal 

author, is not legislative history controlling the construction to be given a statute, but is at most 

persuasive authority similar to the comments of any scholar. See Gen. Chem. Corp. v. De La Lastra, 

852 S.W.2d 916,923 (Tex. 1993), cert. denied, 5 10 U.S. 985 (1993) (law review article about statute 

written by author of legislation). 

Exceptions from the plain meaning rule are made when there is an obvious error such as a 

typographical error or the application of the literal language of a statute would produce an absurd 

result. See FlemingFoods, 6 S.W.3d at 284; see also Bridgestone/Firestone,lnc. v. Glyn-Jones, 878 

S.W.2d 132 (Tex. 1994). We have received briefs arguing that applying the literal language of 

section 382.056(r)(l) of the Health and Safety Code produces an absurd result and that we should 

instead construe it to apply as the legislators who provided its language intended it to apply. See 

Baker Botts Brief, supra note 4; Bond Brief, supra note 3. 

Although the result of section 382.056(r)( 1) is unexpected, and it does not reflect the intent 

of the two legislators who prepared it, we cannot say that it is absurd. The legislators who voted in 

favor of this provision may have believed that the language of the provision was tailored to the 

existing problems in this area of regulation. The Texas Supreme Court stated in Fleming Foods that 

a citizen should be able to determine the law from the language of the Revised Statutes and should 

not have to examine the session laws as well. Fleming Foods, 6. S.W. 3d at 285. Nor should they 

have to look for an Attorney General Opinion that contradicts the literal language of a statute. 

A law review article on the “absurd-results” principle in Texas found numerous cases that 

cited this principle but relatively few of them relied upon it to depart from the plain meaning of a 

statute. See J. Woodfin Jones, lie Absurd-Results Principle of Statutory Construction in Texas, I5 

REV. LITIG. 8 1, 88, 96, 102, 107 (1996). “[I]n the 144 years since the Texas Supreme Court 

recognized the absurd-results principle as an exception to the plain-meaning rule, only 28 cases have 
Mr. Robert J. Huston - Page 6 (JC-0493) 

so used it.” Id. at I 16; see id. at 139 (Appendix C; list of the 28 cases). The largest number of these 

cases involve procedural matters. Id. at 117. None of them appear to depart from the plain meaning 

rule on account of an error in the expression of a legislator’s intent. But see Bd. of Ins. Comm ‘rs of 

Tex. v. Guardian Lljk Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944) (stating in dicta that the 

word “and” is sometimes construed to mean “or” if not doing so would result in an absurdity or be 

tantamount to a refusal to correct a mistake). 

The Commission has been able to apply this statute as written6 although the permitting 

requirement has caused delays for persons applying for permits7 This is not a case where, for 

example, construing a deadline literally will undermine an entire legislative program. See Barshop 

v. Medina Underground Water Conservation Dist., 925 S.W.2d 618, 629-30 (Tex. 1996) (court 

interpreted statutory deadline of March 1,1994, for filing declarations of historical water use under 

Edwards Aquifer Act as “six months after the Authority becomes effective” because legal challenges 

delayed implementation of Authority well beyond March 1, 1994 deadline). 

In answer to your first question, we conclude that section 382.056(r)(l) may not be 

interpreted to allow a portable facility to move to a site without notice if “(a) the portable facility is 

moving to a site that contains a permitted facility, and (b) there has been a portable facility at that 

same site within the past two years.” See Request Letter, supra note 2, at 1. The remedy to any 

problems raised by this provision is to seek legislation. 

You also ask whether the statute applies to pending applications, or only to those applications 

filed on or after the effective date of the statute. See id. House Bill 2912 was effective September 

1,2001, with exceptions not relevant to section 382.056(r)( 1) of the Health and Safety Code. See 

Act ofMay 27,2001,77th Leg., R.S., ch. 965, $8 18.01, 18.15,2001 Tex. Gen. Laws 1933, 1985, 

1989. There was no provision expressly deferring the operation of section 382.056(r)(l). In 

contrast, changes made by House Bill 2912 with respect to the Commission’s consideration of 

compliance history in permit decisions “apply only to an application for the issuance, amendment, 

modification, or renewal of a permit submitted to the Texas Natural Resource Conservation 

Commission on or after September 1,2002.” Id. 5 18.05(f), 2001 Tex. Gen. Laws at 1986-87. 

A statute is operative as soon as it becomes a law. See Popham v. Patterson, 5 1 S.W.2d 680, 

682 (Tex. 1932). The legislature may make changes in procedural statutes applicable to future steps 

in pending cases because litigants do not have vested rights in a procedural remedy. See Merchs. 

Fast Motor Lines v. R.R. Comm ‘n, 573 S.W.2d 502,504-05 (Tex. 1978). The same rule has been 

held to govern changes in administrative rules that are procedural in nature. See Tex. Dep ‘t of Health 

v. Long, 659 S.W.2d 158, 160 (Tex. App.-Austin 1983, no writ). Accordingly, we conclude that 

section 382.056(r)( 1) applies to pending applications for permits. 

6See Steib Memo, supra note 3. 

‘See Brief from Thomas L. Johnson, Executive Vice President, Associated General Contractors of Texas, to 

Honorable John Comyn, Texas Attorney General (Nov. 14,200l) (on file with Opinion Committee). 
Mr. Robert J. Huston - Page 7 (JC-0493) 

You ask whether a facility permitted by the Commission in section 382.056(r)( 1) refers only 

to “facilities permitted under the Texas Clean Air Act or [does] it also include facilities permitted 

under other authority of the Commission,” such as the Texas Solid Waste Disposal Act, chapter 36 1 

of the Health and Safety Code. See Request Letter, supra note 2, at 1. Section 382.056(r)( 1) must 

be read in its context in the Texas Clean Air Act, chapter 382 of the Health and Safety Code. See 

TEX. GOV’T CODE ANN. 5 311 .Ol l(a) (Vernon 1998) (words and phrases shall be read in context). 

Moreover, its terms must be construed in accordance with their statutory definitions. See Tramp. 

IEY. CO., V. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995); TEX. GOV’T CODE ANN. 8 311.011(b) 

(Vernon 1998). 

Section 382.003 of the Health and Safety Code provides that, “[i]n this chapter[,] . . . [flacility [is] a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or 

contains a stationary source,” and a “[slource [is] a point of origin of air contaminants.” TEX. 

HEALTH & SAFETY CODE ANN. 6 382.003(6), (12) (V emon 200 1). The Commission issues permits 

to regulate facilities that may emit air contaminants. See id. 55 382.051(a)( 1) (Vernon Supp. 2002) 

(Commission may issue a permit to construct a new facility or modify an existing facility that may 

emit air contaminants); .05 1 S(a) (p ermit must be obtained before work is begun on construction of 

new facility or modification of existing facility that may emit air contaminants). A “permitted 

facility” is, accordingly, limited to a source of air contaminants that is subject to a per-r-nit issued 

under the Texas Clean Air Act. 

You also inquire about the interpretation of section 382.065 of the Health and Safety Code, 

which provides as follows: 

(a) The commission by rule shall prohibit the location of or operation 

of a concrete crushing facility within 440 yards of a building used as 

a single or multifamily residence, school, or place of worship. 

(b) This section does not apply to an existing concrete crushing 

facility. 

Id. 8 382.065 (Vernon Supp. 2002) (added by Act of May 27,2001,77th Leg., R.S., ch. 965,§ 5.07, 

2001 Tex. Gen. Laws 1933,1961-62). 

You inquire about the meaning of “existing” facility, asking specifically whether a facility 

is “existing” under the following circumstances: 

(a) The concrete crushing facility was authorized as of 

September 1, 2001 [the effective date of Health and Safety Code 

5 382.065][,] and it is actually located or operating at the site as of 

September 1,200l; 
Mr. Robert J. Huston - Page 8 (JC-0493) 

(b) The concrete crushing facility was authorized as of 

September 1,2001[,] but it is not located or operating at the site as of 

September 1,200l; or 

(c) The concrete crushing facility was not authorized as of 

September 1,2001[,] but it is located or operating illegally at the site 

as of September 1,200l. 

Request Letter, supra note 2, at 2. 

The Code Construction Act, chapter 3 11 of the Government Code, provides that “[wlords 

and phrases shall be read in context and construed according to the rules of grammar and common 

usage,” and “[wlords and phrases that have acquired a technical or particular meaning, whether by 

legislative definition or otherwise, shall be construed accordingly.” TEX. GOV’T CODE ANN. 

0 3 11 .O 11 (Vernon 1998). Chapter 3 82 does not define “existing,” but we may look at a dictionary 

definition to determine the plain meaning of a word. “Existing” is defined as “[tlhat exists or has 

existence; that exists at any implied or specified time,” while “exist” means “[t]o have place in the 

domain of reality, have objective being.” V OXFORD ENGLISH DICTIONARY 542,543 (2d ed. 1989). 

Thus, an “existing” facility is a facility actually located at a site on September 1, 2001, and not 

merely a proposed facility that has not become a tangible entity. The dictionary definition of 

“existing” is consistent with the use of “existing? elsewhere in chapter 3 82 of the Government Code. 

For example, the Commission may issue a permit “to construct a new facility or modify an existing 

facility.” TEX.HEALTH&SAFETYCODEANN. 5 382.051(a)(l)(V emon Supp. 2002). The distinction 

between construction of a “new facility” and modification of an “existing facility” shows that an 

“existing facility” is to be contrasted with one that has not yet been built. See also id. $5 382.05 18 

(Vernon Supp. 2002) (preconstruction permit for construction of new facility or modification of 

existing facility); -057 (Vernon 2001) (Commission may not exempt any major modification of 

existing facility from securing preconstruction permit). Accordingly, an “existing facility” includes 

a concrete crushing facility that was authorized as of September 1, 2001, and actually located or 

operating at the site as of that date, but it does not include a concrete crushing facility authorized as 

of September I, 2001, but not located or operating at the site as of that date. 

A concrete crushing facility that was not authorized as of September 1,200 1, but was located 

or operating illegally at the site as of that date is an “existing” facility in the ordinary sense of that 

word. It was actually located and operating at the site. However, the operators have no right to 

continue operating this facility illegally and they are subject to various penalty and remedy 

provisions, including a suit for injunctive relief. See id. 5 382.085 (Vernon 2001). See also TEX. 

WATER CODE ANN. 85 5.013(a)( 11) (Vernon Supp. 2002) (noting Commission’s responsibilities 

under Health & Safety Code, chapter 382); 7.002 (Vernon 2000) (Commission may initiate an action 

under Water Code, chapter 7, to enforce provisions of Water Code and those provisions of Health 

and Safety Code under its jurisdiction); 7.032 (enforcement of Commission rule by injunction). The 

Texas courts have held that zoning provisions which allow nonconforming uses to continue do not 

apply to uses of property that were illegal when the zoning provision was adopted. See City of Phaw 

v. Pena, 853 S.W.2d 56, 63 (Tex. App.-Corpus Christi 1993, writ denied); City of Dallas v. 
Mr. Robert J. Huston - Page 9 (JC-0493) 

Meserole, 155 S.W.2d 1019, 1023 (Tex. Civ. App.-Dallas 1941, writ refd w.o.m.); Scott v. 

Champion Bldg. Co., 28 S.W.2d 178, 184 (Tex. Civ. App.-Dallas 1930, no writ). In our opinion, 

this rule of construction should also apply to section 382.065(b) of the Health and Safety Code. 

Accordingly, the exemption from the location requirement of section 382.065 does not apply to a 

concrete crushing facility that was located or operating illegally at the site when section 382.065 

became effective. 
Mr. Robert J. Huston - Page 10 (JC-0493) 

SUMMARY 

Section 382.056(r)( 1) of the Health and Safety Code provides 

an exemption from giving notice of intent to apply for certain permits 

under the Texas Clean Air Act when a portable source of air 

contaminants is moved to the location of a facility permitted by the 

Commission, “if no portable facility has been located at the proposed 

site at any time during the previous two years.” TEX. HEALTH & 

SAFETY CODE ANN. 8 382.056(r)(l) (Vernon Supp. 2002). This 

provision may not be construed to allow the exemption where a 

portable facility has been located at the proposed site during the 

previous two years. Section 382.056(r)( 1) applies to pending 

applications for permits. A “permitted” facility in this provision is a 

source of air contaminants that is subject to a permit issued under the 

Texas Clean Air Act. 

Section 382.065 of the Health and Safety Act exempts “an 

existing concrete crushing facility” from a prohibition on locating or 

operating a concrete crushing facility within 440 yards of a residence, 

school, or place of worship. Id. 5 382.065. An “existing” concrete 

crushing facility is one that was physically present on the site as of 

the effective date of the provision, but the exemption does not apply 

to a concrete crushing facility that was located or operating illegally 

at the site on the effective date. 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN DENMON GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee