Lloyd A. Fry Roofing Co. v. State, 18559

• Decision Date: 15 May 1975
• Docket Number: No. 18559,18559
• Citation: 524 S.W.2d 313
• Parties: LLOYD A. FRY ROOFING COMPANY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 313

524 S.W.2d 313

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

No. 18559.

Court of Civil Appeals of Texas,

Dallas.

May 15, 1975.

Rehearing Denied June 5, 1975.

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

John Hill, Atty. Gen., Troy C. Webb, Asst. Atty. Gen., Austin, for appellee.

GUITTARD, Justice.

The State of Texas sued Lloyd A. Fry Roofing Company for civil penalties and injunctive relief under the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477--5 (Vernon Supp.1974), for alleged violations in connection with the operation of defendant's plant for the manufacture of asphalt shingles at Irving, Texas. The petition alleges violation of the regulations of the Texas Air Control Board in two respects: (1) failure to install stack-sampling facilities on request of the Board, and (2) permitting visible emissions from defendant's plant of greater opacity than the maximum allowed by the Board's regulations. In a trial to a jury, the trial court directed a verdict against defendant on the charge of failure to install stack-sampling facilities and the only issues submitted to the jury in that respect concerned penalties for the alleged violation. Issues were also submitted concerning the alleged opacity violation. Based on the jury's answers, the court awarded penalties against defendant of $43,400 on the stack-sampling charge and $19,750 on the opacity charge and also granted injunctive relief. Defendant appeals.

With respect to the stack-sampling charge, we hold that the trial court had no jurisdiction because the request by the Board's engineer and counsel for defendant to install these facilities was not an order of the Board and did not exhaust the Board's primary jurisdiction. Accordingly, we reverse and render judgment denying any relief based on this charge. With respect to the opacity charge, we hold that the trial court had jurisdiction, that the evidence is legally sufficient to support the jury's findings that the opacity of the emissions from defendant's plant was in excess of that allowed by the Board's regulations, and that defendant was not denied due process by the Board's failure to give defendant notice concerning the times and places of taking opacity readings at defendant's plant. However, we reverse and remand for a new trial on the opacity charge because of the exclusion of certain evidence offered by defendant and because the court permitted the State to prove defendant's total assets and gross receipts on a nationwide basis.

I. The Board's Primary Jurisdiction

Under authority of § 3.10(f) of the Act, the Board has adopted regulations requiring that any property owner upon request by the Board shall provide such stacksampling facilities 'as may be necessary for the Board to determine the nature and quantity of solid particles which are or may be discharged as the results of source operation.' The record shows that on May 23, 1972, one of the Board's engineers visited defendant's plant and instructed defendant to construct facilities for stack sampling, including steel platforms, steel ladders, sampling ports, and power sources, as described in three pages of specifications. On May 31, 1972, the Board's chief of legal staff wrote a letter to defendant's plant manager 'officially requesting' that the facilities specified by the engineer be installed by June 26, 1972. According to evidence offered by defendant, but excluded by the court and presented to us in a bill of exception, installation of the facilities requested would require an expenditure of $12,500. The Board has never held any hearing to determine whether the facilities specified are 'necessary for the Board to determine the nature and quantity of solid particles which are or may be discharged as the results of source operation,' and has never made any fact finding to that effect. Neither has the Board entered any order requiring, or even requesting, defendants to install such facilities. No regulation of the Board describes the particular facilities which the Board's staff is authorized to request. On defendant's failure to install the facilities requested by the engineer and the attorney, without any further order of the Board, the State, acting through the Attorney General, filed this suit for civil penalties and injunctive relief.

We hold that the request by the Board's engineer and attorney is not a ruling, decision, or similar act of the Board which would exhaust its primary administrative jurisdiction to determine the feasibility and necessity of the stack-sampling facilities requested . Consequently, the trial court lacked jurisdiction to determine whether defendant was in violation of the Board's regulations by failing to comply with the request. This exact point has been decided adversely to the State's contention in Lloyd A. Fry Roofing Co. v. State, 516 S.W.2d 430, 433 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.). We concur in the views expressed in that opinion.

Defendant contends that the same considerations apply to the charge concerning the opacity of the emissions from defendant's plant. We overrule this contention because the Board's regulations establish standards applicable to the emissions in question, and no question is presented of feasibility or necessity that should first be presented to the Board. Section 4.02 of the Act authorizes the Attorney General, at the Board's request, to file suit for penalties and injunctive relief for violation of such regulations. We hold that the present suit falls within that authority in so far as penalties are sought for violation of the Board's opacity regulations.

II. Evidence to Support Verdict

The evidence was undisputed that the emissions from defendant's two plant stacks, if considered on a purely visual basis, had greater opacity than the thirty-percent maximum specified by the Board's regulations. Such visual opacity, however, did not in itself establish a violation because the regulations recognize that visible emissions of water do not create an air-contamination problem unless the water is combined with other particles. Accordingly, the applicable regulation provides: 'Equivalent opacity contributions from uncombined water shall not be included in determining compliance.'

The principal fact dispute at the trial was whether, after excluding any opacity contributed by 'uncombined water,' the remaining opacity of the emissions from defendant's stacks was still in excess of that allowed by the regulations. The jury found that on twenty-five separate days the visible emissions from defendant's plant stacks were in excess of the maximum allowed. In answer to Question Nine, the jury found that on these days the visible emissions did contain uncombined water. In answer to Question Ten, however, the jury found that when the uncombined water was excluded from the readings, the opacity was still in excess of that allowed by the regulations. Defendant contends that there is no evidence to support the jury's answer to Question Ten and, consequently, that judgment should have been rendered in its favor on the basis of the answer to Question Nine.

We overrule this contention because we hold that the evidence was sufficient to support the jury's answer to Question Ten. The point turns on whether the State's witnesses excluded from their readings the uncombined water which the jury found, in answer to Question Ten, to have been contained in the emissions. These readings were made by visually observing the 'plume' emitted from each stack at intervals over a period of several minutes, recording the estimated percentage of opacity, and averaging the resulting figures. According to the Board's instructions concerning plumes containing steam, readings 'should be taken immediately beyond the point where the steam dissipates.' Although there is some uncertainty in the record as to whether 'steam' is invisible water vapor or condensed droplets, the jury was at liberty to conclude from the context of the Board's instructions and from the testimony of the witnesses that the term was used to refer to water in visible form since, of course, invisible water vapor would contribute no opacity.

Five expert witnesses called by the State testified concerning their readings on the several days in question. Three of these testified that they never detected any uncombined water in the emissions from defendant's stacks. Witness Lewis testified that he read the plume 'beyond the point where the steam dissipated,' which, he said, was at a point no more than five feet from the stack. Witness Lightfoot testified that he was familiar with the method of determining uncombined water in a plume. That procedure, he said, was to determine whether the plume had the characteristics of a steam plume with 'white steam that is dissipating,' and, if so, to read just beyond the point of dissipation of the white steam plume. He testified that his readings were taken at the point where the steam, or uncombined water, had dissipated.

The readings reported by Lewis and Lightfoot, as well as by the State's other three experts, consistently exceeded the thirty-percent maximum opacity permitted by the Board's regulations. The averages reported by Lewis varied from 56.6 percent to 64.1 percent. Lightfoot's averages varied from 53.8 percent to 72.8 percent. We hold that this evidence justified the jury in finding in answer to Question Ten that, when uncombined water is excluded from the readings, the opacity was in excess of that allowed by the regulations.

Defendant also contends that when the evidence is considered in the light of the entire record, including the testimony of its own witnesses, the evidence is factually insufficient to support the jury's answer to Question Ten. We do not reach this question, since we remand the case for a new trial on grounds later to be discussed.

III. Right to Notice of Board's...