                              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




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