KEN PAXTON 

ATTORNEY GENERAL OF TEXAS 

April 19, 2018 

The Honorable Joseph C. Pickett Opinion No. KP-0190 

Chair, Committee on Environmental Regulation 

Texas House of Representatives Re: To what extent the Texas Commission 

on Environmental Quality may consider a 

recommendation from ·a local government to 

deny a permit for a facility because the 

facility is incompatible with the local 

government's zoning or land use ordinances 

(RQ-0185-KP) 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Pickett: 

You tell us that the Texas Commission on Environmental Quality (the "Commission") 

"issued a Standard Permit under the Texas Clean Air Act ... for the operation of a concrete 

crushing plant in Fort Worth." 1 You state that, prior to the issuance of the permit, the City of 

Fort Worth "provided [the Commission] with a resolution adopted by the city's governing body 

strongly opposing the issuance of the permit and stating that the operation of the plant would be 

incompatible with the city's zoning regulations." Request Letter at 1. You first ask to what extent 

section 382.112 of the Health and Safety Code requires the Commission "to consider a 

recommendation from a local government to deny a permit ... because the facility is incompatible 

with the local government's zoning or other land use ordinances." Id. Section 382.112 provides 

that a "local government may make recommendations to the commission concerning a rule, 

determination, variancy, or order of the commission that affects an area in the local government's 

territorial jurisdiction" and that the Commission "shall give maximum consideration to a local 

government's recommendations." TEX. HEALTH & SAFETY CODE§ 382.112. In briefing received 

by this office, the Commission asserts that while it "gives maximum consideration to 

recommendations from local governments on whether to approve an air quality permit," its 

determinations are "limited to the requirements and prohibitions specified in the [Texas Clean Air 

Act]," and thus, the Commission "does not review or consider whether an applicant is compliant 

_with any other ... local requirement. "2 Other briefing counters that section 382.112 constitutes a 

1

See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken 

Paxton, Tex. Att'y Gen. at I (Oct. I 0, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for~opinion-rcjs 

("Request Letter"). 

_

2See Brief from Caroline M. Sweeney, Deputy Dir,, Office of Legal Servs., Tex. Comm'n on Envtl. Quality 

at 6 (Nov. 13, 2017) (on file with the Op. Comm.). . 
The Honorable Joseph C. Pickett - Page 2 (KP-0190) 

"mandate to defer to a city's recommendation," which applies "regardless of the legal authority ... 

underlying the recommendation."3 

The Commission administers the Texas Clean Air Act (the "Act"), which the Legislature 

enacted for the policy and purpose of "safeguard[ing] the state's air resources from pollution by 

controlling or abating air pollution and emissions of air contaminants." Id § 382.002(a); see also 

id § 382.01 l(a)(l) (directing the Commission to administer the Act). The Legislature charged the 

Commission with establishing and controlling the State's air quality "through the control of air 

contaminants by all practical and economically feasible methods." Id.§ 382.0ll(a)(2)-(3), (b). 

In doing so, the Commission must, among other things, "advise, consult, and cooperate with ... 

political subdivisions of the state ... concerning matters of common interest in air quality control." 

Id § 382.036(4). 

The Commission may issue various types of permits for the construction or modification 

of facilities "that may emit air contaminants," including a standard permit for facilities that are 

similar. Id § 382.051(a)(l), (b)(3). General standard permits are issued pursuant to section 

382.05195 of the Act, which authorizes the Commission to issue a permit for new or existing 

similar facilities "if the commission finds that: (1) the standard permit is enforceable; (2) the 

commission can adequately monitor compliance with the terms of the standard permit"; and (3) the 

facilities will use specified control technologies based on the timing of the application. Id 

§ 382.05195(a); see also id § 382.05195(b)-(d) (requiring public notice of the proposed standard 

permit, public meeting, and comment opportunity). Permanent concrete plants that perform wet 

batching, dry batching, or central mixing are governed by the specific standard permit provisions 

in sections 382.05198 and 382.05199 of the Act. See id §§ 382.05198(a) (providing that the 

Commission "shall issue" such permits to plants that meet certain listed requirements), 

382.05199(h) (governing public notice and hearing requirements for standard permits issued under 

section 382.05198 and directing the Commission's executive director to approve or deny the 

application within a certain time frame "base[ d] . . . on whether the application meets the 

requirements of Section 382.05198").4 Neither the general standard permit provision nor the 

specific standard permit provision applicable to certain concrete plants requires consideration of 

factors outside of the Act. 

Section 382.112 applies to a local government's recommendation "concerning a rule, 

determination, variance, or order of the commission." Id. § 382.112. With regard to standard 

permits, the determination the Commission makes is whether a permit application meets statutory 

and administrative prerequisites such that the Commission is authorized or required to issue the 

permit, and not whether the applicant meets local zoning and land use requirements. 5 See S. 

3

See Brief from Scott Houston, Deputy Exec. Dir. & Gen. Counsel, Tex. Mun. League & Tex. City Atty's 

Ass'n at 4 (Nov. 9, 2017) (on file with the Op. Comm.). 

4You do not tell us whether the standard permit issued in this instance was pursuant to section 382.05195 

(Standard Permit) or section 382.05198 (Standard Permit for Certain Concrete Plants). 

5But see TEX. HEALTH & SAFETY CODE §§ 382.024 (requiring that in issuing orders and making 

determinations, the Commission "shall consider the facts and circumstances bearing on the reasonableness of 

emissions, including ... the source's social and economic value [and] the question of priority of location in the area 

involved .... "), 382.065 (prohibiting certain locations from operating concrete crushing facilities). 
The Honorable Joseph C. Pickett - Page 3 (KP-0190) 

Crushed Concrete, LLC v. City of Houston, 398 S.W.3d. 676, 678 (Tex. 2013) ("In issuing a 

permit, the Commission determines that the permit application satisfies the [Act] and applicable 

rules."). · Thus, in answer to your first question, section 3 82.112 requires the Commission to 

consider a local government's recommendation only to the extent that the recommendation 

concerns the statutory and administrative requirements of the Act. 6 

You also ask whether it would make a difference "if the local government's 

recommendation was .... adopted in accordance with Section 382.113 ... , which specifically 

authorizes the adoption and enforcement of municipal ordinances for the control and abatement of 

air pollution." Request Letter at 1; see also TEX. HEALTH & SAFETY CODE§ 382.113(b) (providing 

that any such municipal ordinances "must be consistent with [the Act] and the commission's rules 

and orders"). The Commission makes determinations regarding compliance with the Act's 

requirements, not the requirements of local government ordinances. Thus, the authority for 

adopting the ordinance would not change the answer. 

Your remaining questions are related so we address them together. You ask whether the 

Act "specifically preclude[s the Commission] from considering a local government's zoning, land 

use, and other ordinances in determining whether to issue a permit" and whether the Commission 

"would be authorized to deny the issuance of a permit" based on those factors. Request Letter at 

1-2. With respect to standard permits under section 382.05198 for permanent concrete plants that 

perform wet batching, dry batching, or central mixing and meet certain other requirements, the 

Commission "shall" issue the permits, whereas the Commission "may" issue general standard 

permits under section 382.05195 if certain requirements are met. See TEX. HEALTH & SAFETY 

CODE §§ 382.05195(a), .05198(a). Thus, the statutory language appears to preclude the 

consideration of (and denial due to) zoning, land use, and other ordinances for section 382.05198 

permits and is silent regarding section 382.05195 permits. Ultimately, judicial review of a 

Commission action other than cancellation or suspension of a variance focuses on "whether the 

action is invalid, arbitrary, or unreasonable." Id. § 382.032(e); see also City of El Paso v. Pub. 

Util. Comm'n of Tex., 883 S.W.2d 179, 184 (Tex. 1994) (an agency abuses its discretion or its 

decision is arbitrary "if the agency: (1) failed to consider a factor that the legislature directs it to 

consider; (2) considers an irrelevant factor; or (3) weighs only relevant factors that the legislature 

directs it to consider but still reaches a completely unreasonable result" (emphasis added)). 

Whether the Commission's consideration of zoning and land use regulations in a decision on a 

standard permit application under section 382.05195 is invalid, arbitrary, or unreasonable raises 

fact questions that cannot be answered in an attorney general opinion. See Tex. Att'y Gen. Op. 

No. GA-0106 (2003) at 7 ("This office cannot find facts or resolve fact questions in an attorney 

general opinion."). 

6We do not address what constitutes "maximum consideration" as contemplated by section 382.112 because 

this issue has been raised in recently-filed litigation and thus is for the trial court to determine. See City of Marble 

Falls v. Tex. Comm 'non Envtl. Quality, No. D-l-GN-18-000020 (261 st Dist. Ct., Travis Cty., Tex. Jan. 2, 2018). 
The Honorable Joseph C. Pickett - Page 4 (KP-0190) 

SUMMARY 

Section 382.112 of the Health and Safety Code requires the 

Texas Commission on Environmental Quality to consider a local 

government's recommendation on a standard permitting 

determination only to the extent that the recommendation concerns 

the statutory and administrative requirements of the Texas Clean Air 

Act. A court would likely conclude the Commission is precluded 

from considering local zoning, land use, and other ordinances in 

standard permitting decisions made under section 382.05198. The 

Commission could likewise be precluded from considering local 

zoning, land use, and other ordinances on standard permitting 

decisions made under section 382.05195 if a court construed such 

an action asjnvalid, arbitrary, or unreasonable. 

JEFFREY C. MATEER 

First Assistant Attorney General 

BRANTLEY STARR 

Deputy First Assistant Attorney General 

VIRGINIA K. HOELSCHER 

Chair, Opinion Committee 

BECKY P. CASARES 

Very truly yours, 

KEN PAXTON 

Attorney General of Texas 

Assistant Attorney General, Opinion Committee