## KEN PAXTON ATTORNEY GENERAL OF TEXAS
April 19, 2018

The Honorable Joseph C. Pickett OpinionNo. KP-0190 Chair, Committee onEnvironmental Regulation Texas House ofRepresentatives 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

DearRepresentative 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 ofthe permit, the City of Fort Worth "provided [the Commission] with a resolution adopted by the city's governing body strongly opposing the issuance ofthe permitand stating that the operation ofthe plant would be incompatiblewiththe city's zoningregulations." RequestLetter at 1. You first askto whatextent section 382.112 of the Health and Safety Code requires the Commission "to consider a recommendationfrom a local governmentto deny apermit

...becausethe 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 ofthe commissionthat affects an area inthe local government's territorialjurisdiction" and that the Commission "shall give maximum consideration to a local government's recommendations." TEX. HEALTH & SAFETY CODE§ 382.112. Inbriefingreceived 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 "limitedto the requirements andprohibitions specifiedinthe [Texas CleanAir Act]," and thus, the Commission "does not review or consider whether an applicant is compliant _with any other

... local requirement." 2 Otherbriefing counters that section 382.112 constitutes a

1 See Letterfrom Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken Paxton, Tex. Att'yGen. at I (Oct. I0, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for~opinion-rcjs ("Request Letter").

_ 2See Brieffrom Caroline M. Sweeney, Deputy Dir,, Office ofLegal Servs., Tex. Comm'n on Envtl. Quality at 6 (Nov. 13, 2017) (on file with the Op. Comm.).

.The Honorable Joseph C. Pickett

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"mandateto deferto acity'srecommendation,"which applies "regardlessofthelegal 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 ofair contaminants." 

### Id § 382.002(a); 

### see also id § 382.01l(a)(l) (directingthe Commissionto administerthe Act). TheLegislature chargedthe Commission with establishing and controlling the State's air quality "through the control ofair 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 ofthe state
...concerningmatters ofcommoninterestinairqualitycontrol." 

### Id § 382.036(4). The Commission may issue various types ofpermits for the construction or modification offacilities "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 "ifthe commission finds that: (1) the standard permit is enforceable; (2) the commissioncanadequatelymonitorcompliancewiththeterms ofthe standardpermit"; 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 ofthe 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 ofthe Act. 

### See id §§ 382.05198(a) (providing that the Commission "shall issue" such permits to plants that meet certain listed requirements), 382.05199(h) (governingpublicnotice andhearingrequirements for standardpermitsissuedunder 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 ofthe Act. Section 382.112 applies to a local government's recommendation "concerning a rule, determination, variance, or order ofthe commission." 

### Id. § 382.112. With regard to standard permits, the determinationthe Commissionmakes is whether a permit applicationmeets 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.

3See Brieffrom 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). 5 But 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 ofpriority oflocation in the area involved

...."), 382.065 (prohibiting certain locations from operating concrete crushing facilities).

### The Honorable Joseph C. Pickett

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### 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 382.112 requires the Commission to consider a local government's recommendation only to the extent that the recommendation concerns the statutory and administrative requirements ofthe 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 ofmunicipal ordinances for the control and abatement of airpollution." RequestLetterat 1; 

### see also TEX. HEALTH & 

### SAFETYCODE§ 382.113(b) (providing that any suchmunicipal ordinances "mustbe consistentwith [the Act] andthe commission'srules 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 "specificallypreclude[s the Commission] from considering a local government's zoning, land use, and other ordinances in determining whetherto issue apermit" and whetherthe Commission "wouldbe authorized to deny the issuance ofa permit" based onthose factors. Request Letter at 1-2. Withrespectto standardpermits under section 382.05198 for permanentconcreteplants 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 ifcertain 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 ofa 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 ofTex., 883 S.W.2d 179, 184 (Tex. 1994) (an agency abuses its discretion or its decision is arbitrary "ifthe 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 thatthe legislature directs it to consider but still reaches a completely unreasonable result" (emphasis added)). Whether the Commission's consideration ofzoning 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 donotaddress whatconstitutes "maximum consideration" as contemplatedby section 382.112because 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

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### SUMMARY Section 382.112 ofthe 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 statutoryandadministrativerequirements ofthe Texas CleanAir 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 ifa court construed such an action asjnvalid, arbitrary, orunreasonable.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee BECKY P. CASARES Verytruly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee