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## THEATTORNEYGENERAI, OF TEXAS AUSTIN. TXXAS 78711 April 18, 1977

The HonorableCharles Barden Executive Dixector Texas Air Control Board 8520 Shoal Creek Boulevard Austin, Texas 78750 OpinionNo. H-981 Re: Authorityof the Air Control Board to grant variances under the Clean Air Act. Dear Mr. Barden: You have requested our opinion concerningvarious sections of the Texas Clean Air Act, V.T.C.S., art. 4477-5. Your questions are: (1)

(2) Whether the Texas Air Control Board can grant variances from the requirements of Sections 3.27 and 3.28 of the Texas CleanAir Act and TexasAir Control Board RegulationVI for a new facility. Whether requiring a "new source" to complywith the permit requirements of the Texas CleanAir Act and the Board's regulations can result in an arbitrary or unreasonable taking of property, or in the practical closing and eliminationof any lawful business, occupation or activity. Section 3.21 of the Act provides: The board may grant individualvariances beyond the limitationsprescribed in thisAct or in the rules and regulations of the board whenever it is found, upon presentationof adequateproof, that compliancewith any provision of this Act, or any rule or regulation **of** the board, will result in an arbitrary and unreasonable taking of property,or in the practical closing and eliminationof **any** lawfulbusiness, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people.

p. 4084The Honorable Charles Barden - page 2 (H-981)

Sections 3.27 and 3.28 of the Texas Clean Air Act require persons constructing new facilities or modifying existing facilities to apply for and receive construction and operating permits from the Board if those facilitiesmay emit air contaminants into the air of this state. The Act defines a new source in Section 1.03(E)as:

[Alny stationarysource, the construction or modification of which is commenced after the effectivedate of this statute.
. . . Section 3.27(b)requires an applicant to submit,with his application for a constructionpermit, plans and specifihations to enable the Board to determine whether the proposed constructionwill complywith the applicable air control standards and the intent of the Texas Clean Air Act. Section 3.27(c) provides as follows:

If the board finds that the emissions from the proposed facilitywill contravene these standards or will contravene the intent of the Texas CleanAir Act, it shall not grant the permit.

. . . Similar provisionsappear in Section 3.20. Section 3.28(b) provides as follows:

When all stipulations.ofthe constructionpermit aremet and the operation of the facility will not contraveneair pollution control standards setby the board or will not contravene the intentof the Texas Clean Air Act, the board shall issue within a reasonable time the operating permit. Your first question is whether section 3.21 applies to permits issued pursuant to sections 3.27 and 3.20. Section 3.21was a part of the original 1967 act whereas sections 3.27 and 3.28 were enacted in 1971. Generally, an amendment is construed in harmonywith existing provisions of the act amended: the provisionsoperate naturallyupon each other. Schlichtingv. Texas States Board of Medical Examiners, 310 S.W.Zd 557 (Tex.1958);' American Surety Co. of New York v. AxtellCo., 36 S.W.Zd 715 (Tex. 1931). Of course, this principle applies only when there is no conflict between the amendment and the existingprovisions. In our view there is

p. 4085. . _

I The Honorable Charles Barden - page 3 (H-981)

no conflict between section 3.21 and sections 3.27 and 3.28. The latter two provide "limitations"and section 3.21 states that "[tlhe board may grant individualvariances beyond the limitationsprescribed in thisAct.
. . ." There is no language contained in sections 3.27 and 3.28which would indicate that section 3.21 is inapplicablethereto. Accordingly, in our opinion the Board may grant variances from the requirements of sections 3.27 and 3.28.wherethe standards contained in section 3.21 are satisfied.
Your second question is essentiallywhether a "new source" can satisfy the standards contained in section 3.21. As noted above a "new source"may be one which is either constructed or modified after the effectivedate of article 4477-5. A variance is authorizedby section 3.21 only when compliance

will result in an arbitrary and unreasonable taking of property,or in the practical closing and eliminationof any lawful business . . .without sufficient corresponding benefit or advantage to the people.
It is difficult for us to perceive how a facilitywhich is yet to be constructed could satisfy the variance requirements contained in section 3.21. The regulations of the Board are invalid if they are arbitraryor unreasonable. Sec. 6.01(e). It is well established that the enforcement of valid health regulations does not result in an arbitrary or unreasonable taking ,YF ..rrr,Tnr+,r **Nnrthwectarn T~m-drv**  **v. C!it-v**  of Des Moines, 239 ..---..---___ _- -- -___ ;:S:-;::*i;916); . _ ___~ -- -

Nunley v. TexasAnimal Health Commission, 471 S.W.2d 144 ITex.Civ. ADD. -- San Antonio 1971,writref'd n.r.e. Houston-Compressed Steei-Corp.v. State, 456 SiW.2d 768 (Tex.Civ APP- -- Houston [lstDist.] 1970, no writ); Consolidated Rock Products Co. v. City of Los Angeles, 370 P.2d 342 (Calif. 1962),

- A;cmlA 271 ,T !z 16 llQfi3

. VI~,LL u _I+ V.“. 4- ,----).us, compliancewith the act

or with valid rules and requlationsby a facility yet to be construttedwould not, in our-opinion,result in an arbitrary or unreasonable taking of property. Nor can we understand how the second test of section 3.21 is applicable to facilitieswhich are of the permit application, to be constructed, for at the time there would be no business in existencewhich could be practically closed. See Europak, Inc. v. County of Hunt, 507 S.W.2d

- 884 (Tex.Civ. App. -- Dallas 1974, no writ): Attorney General 1: ‘.

Opinion H-455 (1974).

p. 4086- I

The HonorableCharles Barden - page 4 (H-981)

Sections 3.27and 3.28 also require constructionand operatingpermits for "new sources"which aremodifications of.existing sources. We cannot say as a matter of law that no modificationcou'ld ever be entitled to a variance in order to prevent the "practical closing and eliminationof any lawful business." For example, a sourcemay be requiredto change fuels in order to avoid closing its operations,and it may not be feasibleto attain the samedischarge levelwith the new fuel. It iswithin the power of the Board to determine whether suchmodifications qualify for a varianceunder section~3.21. Of course, an applicant for a variancemust show that compliancewith the regulationswould result in a "practicalclosing"of the business or activity and that' there is not "sufficientcorrespondingbenefit or advantage to the people." SUMMARY

Section 3.21 of article 4477-5 is applicable to sections 3.27 and 3.28 thereof. A facility which is to be constructed could not'meetthe standardsfor a variance under section 3.21. Whether a modification of an existing facility is entitled to a variance iswithin the discretionof the Air ControlBoard under the standardsprovided in section 3.21. Very truly yours!
Jc&&z JOHN L. HILL Attorney General of Texas APPROVED:

Assistant

Opinion Committee

p. 4087