Texas Pet Foods, Inc. v. State

• Decision Date: 31 October 1975
• Docket Number: No. 5490,5490
• Citation: 529 S.W.2d 820
• Parties: TEXAS PET FOODS, INC., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 820

529 S.W.2d 820

TEXAS PET FOODS, INC., Appellant, v. The STATE of Texas, Appellee.

No. 5490.

Court of Civil Appeals of Texas Waco.

Oct. 31, 1975.

Judgment of Contempt Nov. 3, 1975.

Rehearing Denied Nov. 20, 1975.

Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, for appellant.

Bernard D. Newsom, Jr., Austin, for appellee.

HALL, Justice.

The problems posed on this appeal are the validity of a temporary writ of injunction and the disposition of a contempt action filed originally in this court based upon asserted violations of the temporary injunction committed during the pendency of the appeal.

Texas Pet Foods, Inc., operates a poultry rendering plant which by a process of cooking converts chicken and turkey offal, including feathers, into a protein supplement for animal feeds. The plant is located in McLennan County near the City of Waco.

The State of Texas brought this suit for temporary and permanent injunctive relief to prevent alleged violations by Texas Pet Foods of Section 4.01 of Article 4477--5, Vernon's Tex.Civ.St. (Texas Clean Air Act), and of Section 4 of Article 4477--6 (Texas Renderers' Licensing Act), and for the assessment of monetary penalties.

The offal is transported daily by the defendant in unrefrigerated trucks to its plant from several poultry processing plants in the vicinity of Waco. There are no refrigeration facilities at the defendant's plant.

Under ideal conditions, the defendant processes around the clock, alternately cooking ten hours, then cleaning up four hours, 5 1/2 days per week; and there is little delay between delivery of the material into the plant and its processing. There are six cookers, each holding up to three tons of raw material. Feathers are rendered separately from the balance of the offal. The feathers cook in one hour; the other cooks in three hours. After cooking, the feathers are mechanically conveyed through a dryer, then a grinder, then in the form of meal into a storage bin. The other material follows the same route after leaving the cookers, except that its first stop is an expeller where oil is pressed from it and run into a tank. Again, under ideal plant conditions, odors emanating from the raw materials, the cookers, the expeller, the dryer, the finished meal, and the water used in the processing, are controlled and eliminated through a 'scrubber system' in the plant and a 'ridge-and-furrow system' in fields outside the plant. Interworking with these systems, and necessary to their proper function, are fans, steam condensers, waterchlorination equipment for oxidizing particulate, filters, grease traps, recycle pumps, and a 'hot well' aeration tank. Maintained and operated at optimum efficiency, the auxiliary equipment prepares vapors and the air in the plant for odor elimination in the scrubber system, and creates a negative air pressure in the plant thereby pulling the air and vapors through the scrubber system for elimination of odors, and also cleanses the water of all particulate and heavy odors before it is released to the ridge-and-furrow system for disposal. If any auxiliary equipment fails to work, or is permitted to operate inefficiently, the scrubber system and the ridge-and-furrow system cannot perform their functions, and offensive odors result.

The ridge-and-furrow system is a 'no-discharge system' consisting of several five-acre tracts upon which the water is released in two-day rotations. A reed grass is cultivated on the ridges for evaporative disposal of the water and aerobic elimination of any odors remaining in it. The system was not designed to handle organic material, and any such material reaching the furrows will putrefy, cause offensive odors, and breed flies.

The scrubber system consists of two parts. There is a venturi-type scrubber which is designed to remove heavy odors, oil droplets, fine meal droplets, and other particulate from the air inside the plant. The second scrubber, the primary one, is a pack scrubber with packing material which can be contaminated with particulate matter. It is designed to handle only plant air from a low-odor source. It cannot handle the high-intensity odors coming from the cookers, expellers, dryers, and other plant areas; but an efficient venturi scrubber will precondition these odors for elimination by the pack scrubber. The scrubber system is an 'intricate piece of equipment,' according to the defendant's president. It was designed and installed by Environmental Research Corporation, and their instructions for its operation, including control of the water flow rate, the air flow rate, chemical injections, and regular removal of particulate, must be closely followed, else the system will fail and odors will be emitted from the plant.

The trucks delivering offal enter the plant through an 'air curtain' which is a series of fans designed to help maintain the negative pressure in the plant and also 'keep odors in and flies out' at the truck entrance. If this air curtain does not function properly, then an outside wind velocity as light as 1.5 miles per hour will generate enough wind to defeat the negative air pressure system, render the scrubber system ineffective, and permit the venting of heavy odors through the door, small holes, or any opening.

The Temporary Injunction

This suit was filed on July 18, 1975. Upon its filing, a temporary restraining order was issued against the defendant without notice. The State's application for a temporary injunction was heard on July 24th, and resulted in the following order:

ORDER OF TEMPORARY INJUNCTION

BE IT REMEMBERED that on the 24th day of July, 1975, came on to be heard Plaintiff's application for temporary injunction in the above numbered and entitled cause and all parties through their respective attorneys of record having announced ready and having considered the contents of Plaintiff's verified Original Petition, and having heard and considered the evidence presented in this cause on the 24th and 25th day of July, 1975, this Court is of the opinion that the Defendant, Texas Pet Foods, Inc., has operated its poultry by-product rendering establishment on Old Marlin Road in McLennan County in a manner violative of the terms and conditions of the Texas Clean Air Act, Article 4477--5, V.A.C.S., and the Texas Renderer's Licensing Act, Article 4477--6, V.A.C.S., and that unless restrained and enjoined therefrom will continue to violate the Texas Clean Air Act, Article 4477--5, V.A.C.S., and the Texas Renderer's Licensing Act, Article 4477--6 V.A.C.S.

IT IS THEREFORE ORDERED, ADJUDGED & DECREED that the Defendant, Texas Pet Foods, Inc., its officers, agents, representatives and employees is enjoined and prohibited pending final trial on the merits from causing or contributing to the presence in the atmosphere, in and around Defendant's Old Marlin Road poultry rendering facility, odors or particulate matter in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property or as to interfere with the normal use and enjoyment of animal life, vegetation or property.

IT IS FURTHER ORDERED, ADJUDGED & DECREED that the Defendant Texas Pet Foods, Inc., its officers, agents, representatives and employees is enjoined and prohibited, pending final trial on the merits, from violating the provisions of Section 4.01(a) and (b) of Article 4477--5, V.A.C.S., and Section 4(b) of Article 4477--6 V.A.C.S., both of which are attached hereto and incorporated herein for all purposes as if fully set forth in this Order.

IT IS FURTHER ORDERED, ADJUDGED & DECREED that Defendant, Texas Pet Foods, Inc., is enjoined and prohibited, pending final trial on the merits, from causing, suffering, allowing or permitting the collection, storage, handling, cooking or processing of poultry products and by-product materials at its Old Marlin Road, Waco, McLennan County, facility until such time as Defendant completes the following requirements:

1) Defendant shall repair all holes in the rendering plant structure and completely seal the entire building to prevent the emission of fugitive odors 2) Defendant shall install a weighted tarp over the entire raw materials' room unloading area to prevent the emission of odors and the introduction of flies;

3) Defendant shall inspect and seal all product handling systems used in the transfer and processing of by-product materials to assure same are leak and spill-proof;

4) Defendant shall vent condensor and hot well exhaust gases, vapors and odors directly to Defendant's Venturri Scrubber;

5) Defendant shall repair or replace the chemical injection pump on the pack tower scrubbing system;

6) Defendant shall repair and seal all trailers and vehicles used in the transporting of raw materials and keep same from leaking;

7) Defendant shall remove all raw and processed poultry materials from rendering plant floors, walls, and equipment and shall thoroughly steam clean same prior to start-up operations and, after start-up, on a daily basis steam clean all in-plant floors;

8) Defendant shall install a recycling pump on the grease trap baffle system and remove all accumulated sludge from its baffle, filtration and chlorination units;

9) Defendant shall level the ridge and furrow waste-water distribution ditches so as to prevent standing water and assure adequate irrigation of ridge and furrow vegetation;

10) Defendant shall develope, reduce to writing, post in a noticeable plant location and insist upon employees following a regular daily cleaning procedure;

11) Defendant shall daily monitor and record the operation of all equipment within the rendering plant; said records are to be kept at the plant site for inspection by authorized regulatory officials; and

12) Defendant shall operate all odor abatement and waste-water treatment equipment according to the manufacturer's specifications.

The Clerk of this Court shall immediately cause...