The opinion
. 1
Mr. Charles R. Barden Opinion No. M-685
Executive Secretary
Texas Air Control Board Re: Authority of the Texas Air
1100 W. 49th Street Control Board to certify
Austin, Texas 78756 air pollution control faci-
lities under Section 169 of
Dear Mr. Barden: the Internal Revenue Code.
Your request for our opinion contains the following ques-
tions:
(1) In view of Section 169 of the Internal Revenue
Code entitled "Amortization of Pollution Con-
trol Facilities", may the Texas Air Control
Board qualify as a state certifying authority
to certify the facility as designed~or con-
structed to achieve control of air pollution,
and has the Board been given the legislative
power to certify such facilities?
(2) If the answer to question (1) is in the nega-
tive, then what would be the~state certifying
authority which would have the jurisdiction ':
to act?
Section 169 of the Internal Revenue Code of 1954 was
amended by Public,Law 91-172, and now provides that new air
pollution control facilities can be amortized, for tax deduc-
tion purposes, over a 60-month period. Under Section 169(d)
a certified pollution control facility means a new identifiable
treatment facility which is to be used, in connection with a
plant that was operating prior to January 1, 1969, to abate or
control atmospheric pollution or contaminations by removing,
altering, disposing or storing the contributing elements.
In order to secure this deduction, the taxpayer must ob-
tain the certification of the facility from the Secretary of
Health, Education and Welfare and from a state certifying auth-
ority. The state certifying authority provided for in the Code
is "a single State agency designated by the Governor of the State
as the official State air pollution control agency", and as de-
fined in Section 3.02(b)(l) of Federal Clean Air Act.
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Mr. Charles R. Barden, page 2 (M-685)
You have advised us that the Governor of Texas has in writ-
ing officially designated the Texas Air Control Board as the offi-
cial Texas State Air Pollution Control Agency. Furthermore, the
Texas Clean Air Act, Article 4477-5, Vernon's Texas Civil Statutes,
and sometimes referred to herein as the Act, Section 1.05 speci-
fically provides:
"The Texas Air Control Board is the State
Air Pollution Control Agency. The Board
is the principal authority in the state
on matters relating to the quality of
the air resources in the state and for
setting standards, criteria, levels and
emission limits for air content and
pollution control".
The policy of the Texas Clean Air Act is set out in Section
1.02 thereof, as follows:
"It is the policy oftthis State and the
purpose of this Act to safeguard the air
resources of the state from pollution by
controlling or abating air pollution
and emissions of air contaminants, con-
sistent with the protection of health,
general welfare, and physical property
of the people, including the esthetic
enjoinment of the air resources by the
people and the maintenance of adequate
visibility",
In keeping with the policy and purpose set out above, broad
powers are given to the Board to perform its duties and func-
tions.
Section 3.01 provides:
"The board shall administer the provisions
of this Act and shall establish the level
of quality to be maintained in, and shall
control the quality of, the air resources
in this state as provided in this Act.
The board shall seek the accomplishment
of the purposes of this Act through the
control of air contaminants by all prac-
tical and economically feasible methods
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Mr. Charles R. Barden, page 3 (M-685)
consistent with the oowers and duties of
the board. The boa& has the powers and
duties speciffcally prescribed in this Act
and all other 'powersnecessary or conven-
ient to carry outrts responslbrlzties.
(Emphasis added)
Section 3.08 provides:
"The boasd may make contracts and execute
instruments that are necessary or conven-
ient to the exercise of its powers or the
performance of its duties".
Section 3.19 further charges the Board to cooperate with
and give assistance to interested persons, groups, other states
and the federal government.
With respect to your questions, a limitation is found
under Section 3.10(b) of the Act which reads:
"Except that provided in SubsectionS(
Cd), (e), and (f) of this Section, the
rules and regulations may not specify any
particular method to be used to control
or abate air pollution, nor the type, de-
sign or method of installation of any
equipment to be used to control or abate
air pollution, nor the type, design, or
method of rnstallatlon or type of con-
structlon of any manufacturing process
or the kind of equipment', (Emphasis
addled)
Neither of the above enumerated exceptions apply to the
questions before us.
Board action is also limited in Section 3.11 with respect
to the air conditions existing solely within buildings and struc-
tures used for commercial and industrial plants, works or shops
when the source of.the offending air contaminant is under the
control of the person who owns or operates a plant, works, or
shops or which affects ~the relation between employers and their
employees in the respective plant.
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Mr. Charles R. Barden, page 4 (M-685)
Neither Section 3.10 nor 3.11 prohibits certifying an air
control facility which is the subject of your question.
The overall authority of the Board to issue and enter
orders and make determinations is very broad. Section 3.12 of
the Act, in its pertinent part, reads as follows:
"(a) The board is authorized to enter orders
and determinations as may be necessary
to effectuate the purpose of this Act,..."
It is the opinion of this office that the Texas Air Con-
trol Board, being the principal State Air Pollution Control
Agency, with the total power to safeguard the air resources of
the state from pollution, by controlling or abating air pol-
lution and emissions of air contaminants, has the authority
and may certify facilities which are designed or constructed
in order to achieve control of air pollution.
Therefore, whenever the Board determines that a facility
is designed or constructed as a measure whose purpose is the
protection of the public health and public welfare authorized,
by the Act, it has the authority to enter appropriate orders.
It is proper statutory construction that such Act is entitled
to a liberal construction for the accomplishment of the obvious
beneficial objectives, 3 Sutherland Statutory Construction,
Section 7203 (1943). There is always a strong presumption in
favor oi the validitv of the statute and the acts verformed
thereunder, Department of Health, State of New Jersey v. Gwens-
Co;x&g Fiber Glass Corporation, ~100 N.J. Super.,366, 242Am,
(1 . Houston Compressed Steel Corporation v. The State of
Texas, S.W.Zd (Tex.Civ.App., Houston, June 25, 1970,
Rehearingoverruled, July 23, 1970).
It is therefore unnecessary to answer your second question.
SUMMARY
-------
The Texas Air Control Board has the power
and authority under Article 4477-5, Vernon's
Texas Civil Statutes, to certify facilities
as designed or constructed for the purpose
to achieve control of air pollution under
the provisions of Section 169 of the Inter-
nal Revenue Code.
-3277-
Mr. Charles R. Barden, page 5 (M-685)
D C. MARTIN
General of Texas
Prepared by Vince Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, ConChairman
Jack Goodman
Bob Darden
James Quick
Austin C. Bray, Jr.
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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