I I 

THEATTORNEYGENERAI, 

OF TEXAS 

AUSTIN. TXXAS 78711 

April 18, 1977 

The Honorable Charles Barden 

Executive Dixector 

Texas Air Control Board 

8520 Shoal Creek Boulevard 

Austin, Texas 78750 

Opinion No. H-981 

Re: Authority of the Air 

Control Board to grant 

variances under the Clean 

Air Act. 

Dear Mr. Barden: 

You have requested our opinion concerning various 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 Clean Air Act and 

Texas Air Control Board Regulation VI for a 

new facility. 

Whether requiring a "new source" to comply with 

the permit requirements of the Texas Clean Air 

Act and the Board's regulations can result in 

an arbitrary or unreasonable taking of property, 

or in the practical closing and elimination of 

any lawful business, occupation or activity. 

Section 3.21 of the Act provides: 

The board may grant individual variances 

beyond the limitations prescribed in this Act 

or in the rules and regulations of the board 

whenever it is found, upon presentation of 

adequate proof, that compliance with 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 elimination of any 

lawful business, occupation or activity, in 

either case without sufficient corresponding 

benefit or advantage to the people. 

p. 4084 
The 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 facilities may emit air contaminants into the air of this state. The Act defines a new 

source in Section 1.03(E) as: 

[Alny stationary source, the construction 

or modification of which is commenced after 

the effective date of this statute. . . . 

Section 3.27(b) requires an applicant to submit, with his 

application for a construction permit, plans and specifihations 

to enable the Board to determine whether the proposed construction will comply with 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 facility will contravene these 

standards or will contravene the intent of 

the Texas Clean Air Act, it shall not grant 

the permit. . . . 

Similar provisions appear in Section 3.20. Section 3.28(b) 

provides as follows: 

When all stipulations.of the construction permit are met and the operation of the facility 

will not contravene air pollution control 

standards set by the board or will not contravene the intent of 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 

3.21 was a part of the original 1967 act whereas sections 

3.27 and 3.28 were enacted in 1971. Generally, an amendment 

is construed in harmony with existing provisions of the act 

amended: the provisions operate naturally upon each other. 

Schlichting v. Texas States Board of Medical Examiners, 310 

S.W.Zd 557 (Tex. 1958);' American Surety Co. of New York v. 

Axtell Co., 36 S.W.Zd 715 (Tex. 1931). Of course, this 

principle applies only when there is no conflict between the 

amendment and the existing provisions. 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 individual variances beyond the 

limitations prescribed in this Act. . . ." There is no language 

contained in sections 3.27 and 3.28 which would indicate that 

section 3.21 is inapplicable thereto. Accordingly, in our 

opinion the Board may grant variances from the requirements of 

sections 3.27 and 3.28.where the standards contained in section 

3.21 are satisfied. 

Your second question is essentially whether 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 effective date of article 4477-5. A 

variance is authorized by section 3.21 only when compliance 

will result in an arbitrary and unreasonable 

taking of property, or in the practical 

closing and elimination of any lawful business . . . without sufficient corresponding 

benefit or advantage to the people. 

It is difficult for us to perceive how a facility which 

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 arbitrary or 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. Texas Animal Health Commission, 471 

S.W.2d 144 ITex. Civ. ADD. -- San Antonio 1971, wri tref'd n.r.e. 

Houston-Compressed Steei-Corp. v. State, 456 SiW.2d 768 (Tex. Civ 

APP- -- Houston [lst Dist.] 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, compliance with the act 

or with valid rules and requlations by a facility yet to be construtted would 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 facilities which are 

to be constructed, for at the time of the permit application, 

there would be no business in existence which 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 Honorable Charles Barden - page 4 (H-981) 

Sections 3.27 and 3.28 also require construction and 

operating permits for "new sources" which are modifications 

of. existing sources. We cannot say as a matter of law that 

no modification cou'ld ever be entitled to a variance in order 

to prevent the "practical closing and elimination of any lawful 

business." For example, a source may be required to change 

fuels in order to avoid closing its operations, and it may 

not be feasible to attain the same discharge level with the 

new fuel. It is within the power of the Board to determine 

whether such modifications qualify for a variance under 

section ~3.21. Of course, an applicant for a variance must 

show that compliance with the regulations would result in a 

"practical closing" of the business or activity and that' 

there is not "sufficient corresponding benefit 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'meet the 

standards for a variance under section 3.21. 

Whether a modification of an existing facility 

is entitled to a variance is within the discretion of the Air Control Board under the 

standards provided in section 3.21. 

Very truly yours! 

Jc&&z 

JOHN L. HILL 

Attorney General of Texas 

APPROVED: 

Assistant 

Opinion Committee 

p. 4087