The opinion
January 9, 1968
Hon. Charles R. Sarden, P.E. Opinion No. M- 187,
Executive Secretary
Texas Air Control Board -. Re: Which of certa,ln specific
1100 West 49th Street activities inquired about
Austin, Texae 78756 Rualify a plant as one
processing agricultural
products In their natural
state" within the meaning
of Sec. 6(c) of Chapter 727,
Dear Mr. Sarden:
Your request for an opinion as to the construction of
Section 6(c), of Article 4477-5, Vernonfs Civil Statutes, asks
for an answer to certain questions relating to the Clean Air Act
of Texas 1967. You are particularly concerned with a determina-
tion of a general standard or test which the Texas Air Control
Hoard should apply to determine whether a plant can qualify as
one "processing agricultural products In their natural state".
The controlling legal question presented is whether cer-
tain actlvlties or operations constitute "processing agricultural
products in their natural statel' within the meaning of Section
6(C), of Article 4477-5, Vernon's Civil Statutes.
Viewed In the light of the purposes of 'the statute (Clean
Air Act of Texas, 1967), it is our opinion that such Section 6(c)
is in law tantamount to an exception or exemption for those
plants which process agricultural products in their natural state.
The purpose of the Act is to 'safeguard the air resources of the
State from pollution by controlling or abating air pollution con-
sistent with the protection of health, general welfare and physi-
cal property of the people, operation of existing Industries and
the economic development of the State". Section 3, Article 4477-5.
Section 6(C) provides as follows:
-i389-
Hon. Charles R. Barden
Opinion No. M-187 - Page 2
“(C) The board shall establish Its rules and regula-
tions concerning the emission of particulate matter
from plants processing aizrlcultural products In
their natural state according to a formula derived
from the process weight of the materials entering
the process. The board may not require In its
rules and regulations that such plants meet a
standard which requires an emission of less than
eight percent of the procese weight of the materials
enterim the process. ” (Emphasis Added)
It is a well settled proposition of flaw that when a regu-
latory statute of general application provides for exceptions
or exemptions a strict construction of such exception or exemp-
tion must be applied. 53 Tex. Jur.2d, 301, Statutes, Sec. 201.
Such a construction must be reasonable and the express,terms of
the act may not be disregarded. Also, exceptions will not be.
extended by construction, and one who claims he is subject to an
exemption or exception will be required to show that he ‘comes
clearly within Its plain terms.
It Is particularly pertinent to observe that the Legisla-
ture chose to qualify the processing of ,agrlcultural products de-
scribed In Section 6(C) to those products processed ‘in their
natural staten. Such a qualification must be given some effect,
If possible, and we are not at liberty to disregard it.
It is noted from your brief attached to. your request that
In your opinion all of the products being processed and inquired
about are subject to Section 6(c) except the following: (1)
operating a cottonseed oil mill, (2) cotton seed Uellntlng, (3).
extracting oil from peanuts (shelled elsewhere), .(q),butcherlng
and processing meat products (received after having been elaugh-
tered), (5) operation of a rendering plant for offal and waete~~
products from slaughter horses and meat processing plants, and
(6) operation of rendering plants for carcasses of dead livestock.
We note further from your statement’and brief submitted
that you lack “familiarity with the procedure@ involved in many
of the activities and operations listed”. Your brief states,
“It’is felt that, rather than attempting to divelop the detailed
information necessary to fully understand each of the,actlvitles
and operations, the task of determining the nature of each of
the’actlvlties and operations could well be the subject of a
series of hearings at which representatives of the varlous ln-
dustries affected could appear and expl$n their operations In
light of the guidelines developed...... .
7
-890-
.,
Iirjn.
Charles R. Barden
Opinion No. M-387- Page 3
The Attorney General has not been given anyfact deterral-
nattons by the Texas Air Control Board concerning whether the
products are being processed In their natural condition or stata
In nature, so that the law may be applied to the'facts as /~rou
Slnd'them. Unless the fact findings ara undisputed and not sub-
ject to opposing inferences, this office is unable to determine,
whether the six agrlcultural.productsor activities listed above
are necesaarllybeing processed In their natural state. There-
fore, this office Is without authority to make such factual determi-
natlons. Attorney General Opdnions Nos. O-2911 (19&I), WW-277
(1957), and C-697 (1966). Determinationof these 'questionsby the
Texas Air Control Board Is a matter of administrativedet&mlnatlon
which Is subject to judicial review by the Court&under the sub-
stantial evidence rule, the test there being whether the board hai
acted lnan arbitrary, unreasonableor capriciousmanner or with-
6ut substantialevidence to support its.findings.
Aa a general guidehe, you~are advised that agricultural
products In their natural state are those which are brought to
a plant for processing In substantiallythe same conditions as
they existed In nature and have not been'artlficlallychanged
from their basic form and substance as found In nature.
v. Farmere Peanut Co., 128 F.2d 404 (C.A. 5th, 1942); fntersta e
2ommerce Commlseion v,.Weldon, 90 F.S. 873, affirmed In 1Et%
367 (C.A 6th, 1951) and Cert. Den. lri342 U.S. 727 (1951);.
Webiter's'ThirdNew &t&national Dictionary, "natural".
We trust that from the above general guidelines, the Texas
EdAir Control Board can proceed to develop and find the necessary .
facts in determining whether an agriculturalproduct being pro-
cessed is subject to Section 6(C), Art. 4477-,5,supra.
SUMMARY
----v-v
Under Section 6(c), of Article 4477-5,
Vernon's Civil Statutes, agriculturalpro-.
ducts In their natural state are those which
‘., are brought to a,plant Sor processipg in sub-
stantially the same condition as they existe~d
i in nature and have,not been artlSiclally
changed from their basic form and substance
as found in nature, Factual determinations
under this standard must be made by the Texas
,
Hon. Charles R. Barden
Opinion No. M-187 - Page' 4
.' '.
i
Air Control Board when promulgating r&i .,' .'
under Section 6(c), supra. 'I
,.
Prepared by Roger Tyler
Assietant Attorney Ge'neral
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
$erne Taylor, Co-Chairman
Joh.n Grace
John Banks
Robert Flowers
Dyer Moore, Jr.
A. J. CARUBBI, JR,
.Staf'f Legal A?sistant
,. . .:,892.t. .,... ,._ .. .
,* %:
.”