The Honorable Charl,e8 R. 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 facilitie 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 ¬able Charlee R. Barden - page 2 (H-792) 

"Control facilitiee" is defined in the Clean Air 

Financing Act a8 

facilitiee deeigned to reduce or eliminate 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 proce88e8 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'with the 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 

prerrent in the atmellphere, and "in ruch concentration and of 

ruoh duration" a8 "to be injurious to or to adverlrely affect 

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 querrtion aeks 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 confirming 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 epecification8 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'f thi8 Act through the control of air 

contaminant8 by all practical and economically 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 te8penribilitie8. 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 facilitierr 8erve 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 pollution, 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 purporre facility 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 conotruction 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 relation8hip 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 
. - 

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 legislature and also declared to be the policy 

of this state that the control of air pollution is essential to the well-being and survival 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 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 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