The opinion
TBE ATTORNEY GENERAL
OP ?JYExAs
AUSTIN. T-8 787Xl
January 30. 1974
The Honorable Charles R. Barden, P. E. Opinion No. H- 222
Executive Director of the Texas Air
Control Board Re: May the Texas Air
8520 Shoal Creek Boulevard Control Board enforce
Austin, Texas 78758 federal regulations and
related questions?
Dear Mr. Barden:
The Environmental Protection Agency of the United States has
indicated that it will issue regulations requiring a permit to construct
or operate an “indirect source” of air pollution. The proposed regula-
tion is found in 38 Fed. Reg. No. 208, October 30, 1973, p. 29895. It
will amend h 52.‘2~2 of Title 40 of the Code of Federal Regulations to add
a paragraph (b) which will provide in its subparagraph (11) that:
“The Governor of the State shall designate the State
or Local agency which will carry out thins regulation
in each area of the State within 30 days from the date
of final promulgation. . . .‘I
Throughout the regulation, responsibilities are placed upon the
“Director” who is defined in subsection (I) (iii) as “the director of the
State or local agency designated by the Governor of the State to carry
out this paragraph. ” Section 52.02(d) of Title 40,of the Code of Federal
Regulations as amended in May, 1972, (37 Fed. Reg. No. 105, May 31,
1972, p. 10846) provides:
“All approved regulatory provisions of beach
plan are incorporated by reference in this part.
Regulatory provisions of a plan approved or pro-
mulgated by the Administrator are enforceable by
the Administrator and the State, and by local agencies
in accordance with their assigned responsibilities
under the plan. ”
p. 1036
The Honorable Charles R. Barden, page 2 (H-222)
Your questions to us are:
“(1) Can a state agency establish an administrative
system to perform functions required by federal
law, i.e. issuing permits to complex sources, if
such functions are not authorized by state legislation?
“(2) Can a state agency initiate legal proceedings
to enforce compliance with federal regulations?
“(3) Is the Attorney General’s office of the State
of Texas obligated to represent the Texas Air
Control Board if it decides to initiate legal proceed-
ings to enforce compliance with federal regulations?
“(4) Can attorneys employed by the Texas Air
Control Board and paid by the State of Texas repre-
sent the Texas Air Control Board if it initiates legal
proceedings to enforce compliance with federal
regulations? I’
The Texas Air Control.Board is created by the Texas Clean Air Act,
Article 4477-5, V. T. C.S. (Acts 1967, 60th Leg., p. 1941, ch. 727). The
Board is a creature of the Texas Legislature and possesses, only such
powers as may be delegated to it by the Legislature, expressly or impliedly.
State v. Jackson, 376 S. W. 2d 341 (Tex. 1964). And see Brown Express,
Inc. v. Railroad Commission, 415 S. W. 2d 394 (Tex. 1967); Cobra Gil &
Gas Corporation v. Sadler, 447 S. W. 2d 887 (Tex. 1968). Thus, to deter-
mine the power of the Board we must Look to the State statutes and not the
federal regulations. Subchapter C of Article 4477-5 prescribes the powers
and duties of the Board. By f 3.01 it is to administer the provisions “of
this Act” and to establish the quality of air resources “as provided in this
Act. ” It “shall seek” the accomplishment of the purposes “of this Act. ”
Section 3.02 requires the Board to prepare and develop a general, compre-
hensive plan for control of the air resources of the State. Section 3.03
authorizes it to require the submission of information. Section 3.04 would
allow it to conduct research in the discharge of its duties “under this Act.”
Section 3.06, authorizes members and employees of the Board to enter public
p. 1037
The Honorable Charles R. Barden, ,page 3 (H-222)
or private property called for by the Act. By 5 3.07 the Board is autho-
rized to institui:e court actions to compel compliance with the provisions
“of this Act or the rules, regulations, orders, variances or other deci-
sions of the board. ” It may enter into contracts and execute instruments
that are necessary or convenient to the exercise of the Board’s powers
for the performance of its duties. Section 3.08.
The Board is empowered ,to make rules and regulations “consi.stent
with the general intent and purposes of this Act” but before adopting any
rules it is required to hold a public hearing after published notice, and
no rule or ~regulation or amend,ment or repeal thereof shall become effective
until approved by at least five members.of the Board. Section 3.09.
Section 3.19(4) provides that tile Board shall “advise, consult and
cooperate” with agencies of the Stat.e, with industries, with other states
“and the federal government. . . .I’ Sections3. 27 and 3. 28 authorize the
Board to issue permits to persons who plan to construct new facilities or
to modify existing facilities which may emit air contaminants and, where
a permit to construdt is issued, to issue an operating permit.
In our opinion, the authority of the Texas Air Control Board is
limited to those acts which it is empowered to perform by the foregoing
sections. Even though $3.19 does require the Board to “advise, consult
and cooperate” with the federal government, nowhere do we find any
authority for the Board to administer the federal law or to perform func-
tions required by the federal Law. Since your first question specifically
asks whether you may perform functions which “are not authorized by
state legislation, ” our answer must be in the negative, i. e. that you may
not perform functions required by federal law unless and until authorized
by state law to perform them.
Your second question asks whether a state agency may initiate legal
proceedings to enforce compliance with fe~deral regulations. Limiting our
answer to your agency and to these federal regulations, our answer must
be that it may not.. There may be other agencies and other circumstances
under which a state agency may bring legal proceedings to enforce compliance
with federal regulations but we do not find any authority in your agency to do
SO. This is not to say that if the federal regulation is one which your agency
pe 1038
The Honorable Charles R. Barden, page 4 (H-222)
itself would be authorized to issue, it may not issue an identical regu-
lation and enforce it as its own.
Our answer to the first two questions answers the third and fourth.
SUMMARY
The Texas Air Control Board, being a creature
of the Legislature, is limited in its authority granted
it by statute. It has no authority, absent legislative
authority, to enforce or to administer a proposed regu-
lation of the Environmental Protection Agency which is
not within its statutory jurisdiction and which it has not
adopted as its own regulation.
Very truly yours,
Attorney General of Texas
APPTVED:
</XY F. YORK, Fiy Assistant
DAVID M. KENDALL. Chairman
Opinion Committee
p. 1039