Lloyd A. Fry Roofing Co. v. State

• Decision Date: 12 August 1976
• Docket Number: No. 18970,18970
• Citation: 541 S.W.2d 639,7 Envtl.L.Rep. 20
• Parties: 7 Envtl. L. Rep. 20,096 LLOYD A. FRY ROOFING CO., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 639

541 S.W.2d 639

7 Envtl. L. Rep. 20,096

LLOYD A. FRY ROOFING CO., Appellant, v. STATE of Texas, Appellee.

No. 18970.

Court of Civil Appeals of Texas,

Dallas.

Aug. 12, 1976.

Rehearing Denied Sept. 16, 1976.

Jack Pew, Jr., D. L. Case, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.

John L. Hill, Atty., Gen., W. Thomas Buckle, Asst. Atty. Gen., Austin, for appellee.

GUITTARD, Justice.

This appeal is taken from a temporary injunction restraining the operator of a plant manufacturing asphalt shingles from violating the regulation of the Texas Air Control Board limiting opacity of emissions into the atmosphere. The temporary injunction was granted after this court had reversed a final judgment in favor of the State for injunctive relief and statutory penalties under the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477--5 (Vernon Supp.1974), and had remanded the cause for further proceedings. Lloyd A. Fry Roofing Co. v. State, 524 S.W.2d 313 (Tex .Civ.App.--Dallas 1975, writ ref'd n.r.e.). On this appeal the defendant contends that the trial court abused its discretion in granting the temporary injunction because (1) there is no evidence of defendant's violation of the regulation, (2) the temporary injunction is not sufficiently specific under Tex.R.Civ.P. 683, and (3) the regulation itself is too vague to give notice of the conduct which may be in violation. For the purpose of determining whether the trial court abused its discretion in issuing the temporary injunction, we hold that both the regulation and the injunction are sufficiently specific, so far as the present record shows, and that the evidence is sufficient to support the trial court's finding of a violation. Accordingly, we affirm the trial court's order.

1. Validity of the Regulation

All of defendant's contentions, as we view them, turn on the meaning of the term 'uncombined water' as used in the Board's regulation, which directs that 'uncombined water' be excluded from determinations of opacity. Consequently, we consider first the meaning of the regulation.

Administrative regulations are tested by the same principles of construction as statutes. Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970), App. dism. 400 U.S. 986, 91 S.Ct . 459, 27 L.Ed.2d 435 (1971); Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1025 (1942). A statute is unconstitutionally vague only when a required course of conduct is stated in terms so vague that men of common intelligence cannot be sure of what is required; that is, when there is substantial risk of miscalculation by those whose acts are subject to regulation. Texas Liquor Control Board v. Attic Club, Inc., supra.

Accordingly, we review the applicable provisions of the Board's regulation to determine whether its meaning is clear enough to give reasonable notice of what is required. Rule 103.1 of the regulation provides:

No person may cause, suffer, allow or permit visible emissions from any stationary flue to exceed an opacity of 30% Averaged over a 5-minute period.

This rule is modified by the following provision of rule 103.7:

Contributions from uncombined water shall not be included in determining compliance with Rule 103. The burden of proof which establishes the applicability of Rule 103.7 shall be upon the person seeking to come within its provisions. ¹

The term 'uncombined water' is not defined in the regulation or in the statute, but the regulation provides as follows:

Unless specifically defined in the Act or in the Rules of the Board, the terms used by the Board have the meaning commonly ascribed to them in the field of air pollution control.

In view of this provision we must assume that 'uncombined water' is used in its technical sense in the field of air pollution control, if it has a technical meaning in that field. When a term used in a statute has a peculiar or technical meaning as applied to some art, science, or trade, the court will look to the particular art, science, or trade from which it was taken in order to ascertain its meaning. O'Hara v. Luckenbach S.S. Co., 269 U.S. 364, 370, 46 S .Ct. 157, 159, 70 L.Ed. 313 (1926); Texas & N.O.R. Co. v. W. A. Kelso Building Material Co., 250 S.W.2d 426, 430 (Tex.Civ.App.--Galveston 1952, writ ref'd n.r.e.). If such a technical term is not defined in the statute, courts have interpreted the statutes in the light of the testimony of expert witnesses familiar with the particular art, science, or trade. See Order of Railway Conductors v. Swan, 329 U.S . 520, 525--28, 67 S.Ct. 405, 408, 91 L.Ed. 471 (1947); Texas Alcoholic Beverage Commission v. Major Brands of Texas, Inc., 492 S.W.2d 616, 620 (Tex.Civ.App.--Austin 1973, no writ).

We cannot take judicial notice of the technical meaning of 'uncombined water' in the specialized field of air pollution control . Therefore, in accordance with the above authorities, we must construe the term in the light of the record in this case. In this process we are aided by a presumption that the regulation is valid. A statute is presumed to be valid and the burden is on the party asserting its invalidity. Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex.1970). The same presumption is applied to administrative regulations. Brown v. Humble Oil & Refining Co., 126 Tex. 296, 87 S.W.2d 1069, 1070 (1935); State v. Lloyd A. Fry Roofing Co., 9 Or.App. 189, 495 P.2d 751, 754 (1972).

We conclude that defendant has not discharged its burden to establish invalidity of the regulation. Mere absence of a definition of 'uncombined water' in the regulation does not establish that the term is impermissibly vague. Only those terms whose meaning is not otherwise clear require definition. Neither is impermissible vagueness shown by the evidence in this case. The only testimony casting doubt on the meaning is that of defendant's witness Morris Key, an analytic chemist and consultant in the environmental field. He did not testify concerning the meaning of 'uncombined water' in the field of air pollution control. He said that in the field of chemistry the term 'combined' has a well-known meaning, that is, when two substances combine they form a third substance with properties dissimilar to the individual components, as hydrogen and oxygen combine to form water. He testified that the emissions from defendant's plant contain asphalt or hydrocarbon particles around which water has condensed, and that the water so condensed is 'uncombined' in the chemical sense, although it is physically 'adsorbed' to the asphalt nucleus. In his opinion, such 'adsorbed' water does not evaporate as quickly as condensed water droplets containing no such nuclei, and thus does not form a definite line of demarcation easily detectable by an opacity observer. When asked whether the process of 'adsorption,' which he had described, was a 'physical combination of water with asphalt particles,' he testified that if was 'not a combination in the sense of my training.' He added, however, 'When you start talking physical combinations you are outside the realm of my experience.' From this testimony the inference may be drawn that Mr. Key would not venture an opinion as to the meaning of the term outside the field of chemistry. He gave no testimony concerning the meaning of the term in the field of air pollution control, nor did he assert that the term was not well understood in that field.

The only direct testimony on the meaning of the term in the field of air pollution control is that of Dean Wolbach, the Board's Chief of Methods Evaluation Group for Source Surveillance. Dr. Wolbach holds a Ph.D. degree in organic chemistry and has received special training in various aspects of air pollution sampling and abatement. He testified that he knew of no confusion concerning the definition of the term 'uncombined water' in the field of air pollution. He said that in the scientific field as it relates to opacity observation, 'uncombined water is water that has condensed, become visible in what we call layman's steam.' According to Dr. Wolbach, if there is such 'layman's steam' presnet in the 'plume' emitted from a stack, there is a clear-cut demarcation where the plume of steam disappears, and observers should read the plume beyond that point for the purpose of determining the opacity of the emissions. Other witnesses for the State, who were trained and certified by the Board as opacity observers, testified that they could easily determine whether a plume contained uncombined water by observing it and looking for a definite line of demarcation where the condensed water or 'layman's steam' dissipates.

Some corroboration of this testimony was provided by defendant's witnesses. Cynthia Placko testified that she had seen 'steam plumes,' which were very white and dense and were soon dispersed into the air. R. L. Chaffin testified that it is easy to determine a line of demarcation when steam coming out of a stack condenses on hitting the outside air and then quickly dissipates, but difficult when moisture is emitted in the form of 'condensed water.'

Since the Board's regulation expressly provides that terms not specifically defined should 'have the meaning commonly ascribed to them in the field of air pollution control,' and since Dr. Wolbach was the only witness to testify concerning the meaning of 'uncombined water' as commonly understood in that field, we conclude that defendant has not overcome the presumption of validity of the regulation. Consequently, we hold that the trial court could properly determine for the purpose of issuing a temporary injunction that the term was well understood in that field and was sufficiently definite to give reasonable notice of its meaning.

In view of Dr. Wolbach's testimony that 'uncombined water' in rule 103.7 means condensed water which is visible in the plume and quickly dissipates at an easily observable...