January 9, 1968

Hon. Charles R. Sarden, P.E. Executive Secretary Texas Air Control Board -. 1100 West 49th Street Austin, 

### Texae 78756 Opinion No. M-

### 187, Re: Which of certa,ln specific activities inquired about 

### 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 determination 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 certain actlvlties or operations constitute "processing agricultural products in their natural statel' 6(C), within the meaning of Section 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 consistent with the protection of health, general welfare and physical property of the people, operation of existing Industries and the economic development of the State". Section 6(C) provides as follows: Section 3, Article 4477-5.



### -i389-Hon. Charles R. Barden

Opinion No. M-187 - Page 2

“(C) The board shall establish Its rules and regulations 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 regulatory statute of general application provides for exceptions or exemptions a strict construction of such exception or exemption 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 Legislature chose to qualify the processing of ,agrlcultural products described 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 elaughtered), (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 lndustries affected could appear and expl$n their operations In light of the guidelines developed......

.

7 -890-

.,

### Iirjn.

CharlesR. Barden OpinionNo. 

## M-387- Page 3

The AttorneyGeneralhas not been given anyfact deterralnattonsby the TexasAir ControlBoard concerningwhetherthe productsare beingprocessedIn their natural conditionor stata In nature, so that the law may be applied to the'factsas /~rou Slnd'them. Unless the fact findingsara undisputedand not subject to opposinginferences,this office is unable to determine, whether the six agrlcultural.products or activitieslistedabove are necesaarllybeing processedIn their natural state. Therefore, this office Is withoutauthorityto make such factualdeterminatlons. AttorneyGeneralOpdnionsNos. O-2911 (19&I),WW-277 (1957),and C-697 (1966). Determination of these 'questions by the TexasAir ControlBoard Is a matter of administrative det&mlnatlon which Is subjectto judicialreviewby the Court&under the substantialevidencerule, the test there beingwhether the board hai acted lnan arbitrary,unreasonableor capriciousmanner or with6ut substantialevidenceto support its. findings.
Aa 

### a generalguidehe, you~areadvised that agricultural products In their natural state are thosewhich are broughtto a plant for processingIn substantially the same conditionsas they existed In nature and have not been'artlficlally changed from their basic form and substanceas found In nature. v. FarmerePeanut Co., 128 F.2d 404 (C.A. 5th, 1942); fnterstae Et% 2ommerce Commlseionv,.Weldon,90 F.S. 873, affirmed In 1 367 (C.A 6th, 1951) and Cert. Den. lri 342 U.S. 727 (1951);. Webiter's'Third

New &t&national Dictionary, "natural".
We trust that from the above generalguidelines,the Texas Ed Air ControlBoard can proceedto developand find the necessary
. facts in determiningwhetheran agriculturalproductbeing processed is subjectto 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 theirnatural state are thosewhich are broughtto a,

plant Sor processipgin substantiallythe same conditionas they existe~d i 

### in natureand have,notbeen artlSiclally changedfrom their basic form and substance as found in nature, Factualdeterminations under this standardmust 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. .,... ,._ .. .

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