The HonorableCharl,e8 R. Barden OpinionNo. R-792 Executive Director TexaeAir Control Board Re: Reeponribilityof 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 reque8tedour opinion on a numberef, que8tionr regarding the Clean **Air** Financing Act, articl8 4477-Sa, **V.T.C.S.** In thfr regardyou **a8kr**

1. What ir the rignifioanceof the u8e of the term 'air pollution' rather than 'aircontaminant' in the definition of 'controlfacilitie8?'
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 facilitywhioh 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 facilityde8igned to reduce emirrion8 

### from a 

### propored, **but** not yet oon8truotad, Iouroe of **air** oontaminanC8?

p, 3338The ¬able Charlee R. Barden - page 2 (H-792)

"Control facilitiee" is defined in the Clean Air FinancingAct a8

facilitieedeeigned to reduce or eliminate air pollutionwhich have been SQ certified by the TexaeAir Control Board or by it8 executive eecretarya8 may be authoriledby the TeXa8 Air Control Board. V.T.C.S. art. 4417-5a, S 3(Z). The Act 8tater that "airpollution * and "air contaminant" hrve the 8amemeaning8 a8 in the Texae Clean Air Act. Sec. 3(l). The Clean Air Act define8 "air contaminants" ae particulatematter, duet, funie8, **qa8, mi8t,**  Bmoke, vapor or **odor,** or any combination thereofproduced by proce88e8 other than natural.

. . . ViT.C;S. art, 4477-5, S 1.03(l). "Airpollution"means

the pre8ence **in** the atmo8phere of one **or** moreair contaminant8or combination8 thereof, in ruch concentrationand of 8uch duration a8 are 

### ormay tend to be injurisu8 to or to advereely affect human health or welfare, 

### animallife,vegetation or property, **or** 

### a8 to interfare'with thenormaluseand 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 "airpollution" 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 adverlrely affect human 

### healthor welfare, animal life,vegetation or property,

**Q.** 3339. -

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

or as to interferewith 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 airpollution," as that term ie defined in the TeXa8 CleanAir Act. **Your** secondquerrtion aeks whether the Boardmay certify **a** portion or percentage of a facility **a8** a "control facility.* Section 14 of article 4477-5aprovide8:

In certifying facilitieea8 control facilitiee the Texas Air Control Board may pre8oribe neceeeary criteria and, procedure8 for euch certificationand can limit euch certification to confirming that the propored facility i8 intended for the purpose of controlling air pollution. No certificationa8 to the adequacy of the facility or it8 expectedperformance or other epecification8 shallbe neceeeary. The 8tatuteprovides, in eection 13, that

[nlotwithetandingthe provi8ion8 of thi8 eection, it in furtherprovided that nothing in thieAct 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 authorizedby the TeXa8 Clean Air Act, **a8** amended.

. . . One of the duties which the Clean Air Act impose8upon the Board ie to

eeek the accomplishmentof the purporer o'fthi8Act through the control of air contaminant8by all practical and economically feaeiblemethod8 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 rpecificallyprercribed in thisAct and all other power8

### nece88aryor convenient to carry 

### out it8 te8penribilitie8. V.T.C.8. art. 4477-5, S 3.01.
In addition, the Clean Air Act provide8 that

[elxcepta8 provided in 8Ub8eCtiOn8 (c), Id), (e)and (f)of thie rection, the 

### rule8andregulation8 may not specify any particularmethod to be 

### ured to control 

### or abateair 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 in8tallationor type of conrtructionof any manufacturing procerre8 **or** other kind8 of equimnt. V.T.C.S. art. 4477-5, S 3.10(b).
You advice that many facilitierr 8erve a dual purpo8e. One purpore 18 the production of d 8alable product, which productionwould incidentally

### reeultin 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 

### themostpractical and economically feaeiblemean8 of accomplishing the control of air pollution,we believe that it may further that 

### purposeby partial certification of the facility. The prohibition of eection 3,10(b) 8UppOrt8 thi8 COnClU8iOn, since a refunal of partial certification to a dual purporrefacilitywould neceeearily cause the Board to epecify a *particularmethod to be ured to control or 

### abateairpollution."
you aleo a8k whether 8 facilitywhich require8 a conotructionpermit 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 relation8hip between certification

### and the i88uance of oonrtruction permits. Thu8, it 18 Quropinian that a facilitymay be certified a8 a "control facility" .withoutregard to it8 poeture under oeotion 3.27 of the Clean Air Act.

Q.3341. -

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

Your final question is whether the Boardmay certify a facilitydeoigned to reduce emissions from a proposed, but not yet constructed, 8ource of air contaminante. We note the absence **of** any direct or impliedprohibition 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 Legislaturewas concerned about future, as well as present, 8ources of air Rollution:
It ie hereby determinedby the legislature and also declared to be the policy of this state that the control of air pollution is essential to thewell-being and survival of its inhabitantsand the protection of the environment, and that specifically the control, prevention, and abatement of air pollution are andwill be for the -- specificpurpose of the coneervationand development of the natural resources of the state,within themeaning of Article XVI, Section 59(a), of the Texas Conetitution, through the prevention of further damage to or destruction of the environment, 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 pollution in the absence of the control facility.
SUMMARY The Texas Air Control Board may certify a8 a "control facility" only thoee facilities 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 conetructionpermit, as well a8 

### a facilitydesigned to 

### reduce emisaione from a proposed, but not yet conetructed, 8ource of air contaminante. Very truly youre,

Opinion Committee jwb

**Q. 3343**