F/R CATTLE COMPANY, INC., Petitioner, v. The STATE of Texas, Respondent, 866 S.W.2d 200

OPINION GONZALEZ, Justice. Respondent’s motion for rehearing is overruled. Our opinion of April 21, 1993, is withdrawn and the following is substituted in its place. This ease involves the application of the Texas Clean Air Act to a calf-feeding facility in Erath County. The State sought to enjoin F/R Cattle Company’s operations under the Clean Air Act. The trial court held that the emissions were the product of natural processes excluded from regulation by the Act, and dismissed the suit for want of jurisdiction.

The court of appeals determined that as a matter of law, this case comes within the purview of the Act, and reversed and remanded for further proceedings. 828 S.W.2d 303. We reverse the judgment of the court of appeals, and remand this cause to that court for consideration of the State’s factual sufficiency points. F/R Cattle Company commenced operation of the calf feeding facility in July 1990. The facility is located two and a half miles south of the town of Lingleville. There are approximately 21 dairies within a three mile radius of the F/R site.

Each of these dairies have an average of approximately 500 full-grown dairy cows. F/R’s operation consisted of buying calves born at the local dairies and raising them to a weight of 250 to 300 pounds. The newborn calves were kept in 5-by-8 foot hutches with a sloping roof. F/R kept three calves to a hutch for 55 to 60 days, at which time they were moved to open pens. When the calves reach their desired weight at about four months, they were sold to feed lots or back to the dairies. At the time of suit, the operation maintained about 5,900 calves at any one time.

The Texas Air Control Board received numerous complaints regarding the odor associated with F/R’s facility. As a result of these complaints, the State brought a suit on behalf of the Board against F/R seeking an injunction and civil penalties on the grounds that odors from F/R’s calf-raising facility violated the Texas Clean Air Act by releasing air contaminants without a permit. At the hearing on the State’s petition for a temporary injunction, the trial court considered only F/R’s plea to the jurisdiction of the court.

After a full evidentiary hearing, the trial court made findings that F/R’s operation is normal, usual, and natural in the area and locality where it is situated, that any odor resulting from F/R’s operation is odor produced from a process that occurs in nature, and that the odor is affected or controlled by human devices only to an extent normal and usual in the vicinity. Specifically, the trial court found: 1.

Defendant, F/R Cattle Company operates a confinement facility for dairy calves on the east side of FM 219, approximately 2.5 miles south of Lingleville and approximately 7 miles north of Dublin, in Erath County. 2. Defendant commenced operations at its present site on approximately July 17, 1990. 3. The operation conducted by Defendant consists of raising calves acquired from dairies for 110 to 120 days at which time they are returned to the dairies or sold to other buyers. 4. After arrival, the calves are housed in wooden hutches for approximately 56 to 60 days at which time they are placed in pens. 5.

The property immediately to the north of Defendant’s operation is the site of a 520-head dairy. 6. There are approximately seven additional dairy operations between Defendant’s operation and Lingleville. 7. There are approximately 21 dairy operations, with an average of approximately 500 cows each, and three horse ranches, within approximately a 3-mile radius of Defendant’s operation. 8. The Pat Wilson property and residence is located approximately one-half mile east of Defendant’s property. 9.

The Weldon McConnell horse farm and residence is located approximately one-half mile south of Defendant’s operation. 10. A residence leased by Ronnie McConnell is located across FM 219 approximately 100 yards from Defendant’s operation, on the horse farm where Mr. McConnell works. 11. The Mary Martin property and residence is located approximately one-half mile north of Defendant’s operation. 12. Another horse farm is located in the vicinity of Defendant’s operation. 13. The area in which Defendant’s operation is located is rural and agricultural. 14.

On October 3, 1991, there were approximately 6,000 calves at Defendant’s facility. 15. The amount of waste generated by 6,000 calves at Defendant’s operation is approximately the amount of waste generated at a dairy of approximately 475 full grown dairy cows. 16. Defendant’s calf operation is normal, usual and natural in the area and locality where it is situated. 17. Any odor resulting from Defendant’s operation is odor produced from a process that occurs in nature, and is affected or controlled by human devices only to an extent normal and usual in the vicinity.

The trial court then dismissed the Board’s suit on the grounds that the Board lacked jurisdiction over the facility because the facility was producing natural odors and therefore was excluded from the Clean Air Act. The court of appeals reversed and remanded the cause to the trial court to proceed with the State’s complaints, based on its conclusion that, as a matter of law, the odor at the defendant’s calf-feeding facility was not produced by natural processes. THE TEXAS CLEAN AIR ACT The Texas Clean Air Act is codified at Tex. Health & Safety Code §§ 382.001-141.

Its purpose is: [T]o safeguard the state’s air resources from pollution by controlling or abating air pollution and emissions of air contaminants, consistent with the protection of public health, general welfare, and physical property, including the aesthetic enjoyment of air resources by the public and the maintenance of adequate visibility. Id. § 382.002. The Act confers on the Texas Air Control Board the authority to accomplish the Act’s purposes through the control of “air contaminants.” Tex. Health & Safety Code § 382.011(b).

An “air contaminant” is defined as: [Pjarticulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural. Tex. Health & Safety Code § 382.003(2) (emphasis added). The statute explicitly excludes emissions produced by “natural processes,” but does not elaborate what the legislature intended to exclude from regulation. The crux of the dispute between the parties is over the meaning of this phrase. Two court of appeals opinions have interpreted the “natural processes” language. Europak, Inc. v.

County of Hunt, 507 S.W.2d 884 (Tex.Civ.App.—Dallas 1974, no writ); Southwest Livestock and Trucking Co. v. Texas Air Control Board, 579 S.W.2d 549 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r.e.). In Europak, the County of Hunt and the State sought to prevent the defendant from constructing and operating a horse slaughter and packing facility without first obtaining a permit from the Air Control Board. The trial court issued a temporary injunction. In the court of appeals, Europak took the position that the Act excludes all processes that occur in nature.

The County and the State urged that the phrase should mean that which is natural or usual in the ordinary course of experience. The court of appeals rejected both

interpretations urged by the parties as the sole test, and held that the Act embraced aspects of both. The court observed that certainly much of agri-business was intended to be subject to the Act, but declined to construe the statute to mean that all processes involving human activity to any degree are not natural processes. It defined a “natural process” as “one that occurs in nature and is affected or controlled by human devices only to an extent normal and usual for the particular area involved.” Id. at 891.

The court noted that it is normal in Texas to put livestock in a pen or corral, and that a strict number criterion would not work. It ultimately upheld the trial court’s injunction because, “although the process which directly produces the odor may be one that occurs in nature, the evidence is sufficient to support a finding that concentration of such a large number of animals into such a small area would not be normal or usual in this vicinity.” Id. Thus, the court held that there was some evidence to uphold the trial court’s findings of fact as against a legal sufficiency challenge.

In Southwest Livestock, the Board ordered the owner of a livestock holding facility to take corrective measures to bring its operations within the Board’s rules and regulations. The trial court upheld the Board’s order over the defendant’s contest to the court’s jurisdiction. The court of appeals reviewing the trial court’s judgment followed the test adopted in Europak. Southwest Livestock, 579 S.W.2d at 552.

It upheld the trial court’s implied finding that the concentration of cattle pens was not normal, usual, or natural for the area where the pens were located because they were located well within city limits in close proximity to urban land uses such as residences and small commercial enterprises particularly susceptible to strong odors. Id. In both Southwest Livestock and Europak, the case was tried to the trial court, and the courts of appeals upheld fact findings of the trial court.

In the present case, the court of appeals disagreed with the trial court’s findings: We hold that it is- abnormal and unusual, without regard to location, to concentrate approximately 6,000 baby calves in 1,500 small hutches and in weaning pens. See Smith v. Padgett, 596 S.W.2d 530 (Tex.Civ.App.—Beaumont 1979, writ refd n.r.e.). The odor at the defendant’s calf feeding facility was not produced by natural processes. The trial court erred in dismissing the State’s petition. The Texas Clean Air Act is applicable, and the Texas Air Control Board has jurisdiction. 828 S.W.2d 303, 306.

Thus the court of appeals held that, regardless of the vicinity, the confinement of so many calves in such a small area was unnatural. F/R contends that the court of appeals has impermissibly substituted its view of the facts for that of the fact finder. In its reply brief, the State accepted the definition of “natural processes” articulated in Europak and Southwest Livestock, but argued that the issue of whether the odors from F/R’s facility were the product of natural processes was a question of law decided correctly by the court of appeals.

At oral argument, the State went further and asked that we disapprove Europak and Southwest Livestock and give the Board jurisdiction wherever there is any human involvement with the production of an odor or other air contaminant, without regard to location. We decline the State’s invitation to depart from the holdings of Europak and Southwest Livestock and adopt the holdings of these eases that location is a factor to be considered in determining whether a pollutant was “produced by processes other than natural.” We must presume the language in Health and Safety Code

section 382.003(2) excluding odors produced by natural causes from the definition of air contaminants was placed in the statute to serve some purpose. Given a literal reading the statute would exempt virtually all agricultural pursuits, and defeat the purpose of the Act. The State’s

interpretation of this language would extend the Board’s jurisdiction to all farms, ranches, or households with pets regardless of where located, because by definition they include human involvement with natural processes. This

interpretation is unwarranted in light of the Act’s legislative history. The definition of “air contaminants” in Texas Health and Safety Code

section 382.-003(2) was passed as part of the Clean Air Act of Texas. 59th Leg., R.S., ch. 687, § 2(A), 1965 Tex.Gen.Laws 1683. The purpose of this Act was stated as protecting the State from pollution “consistent with the protection of normal health, general welfare and physical property of the people, maximum employment and full industrial development of the State.” Id. § 1. Odor was not included in the definition of air contaminants. Id. § 2(A). The 1965 Act instructed the Board to make allowances in any rules or regulations for differences between residential and other areas of the State. Id. § 6(B).

The State’s alternative argument, that the test in Europak and Southwest Livestock is a question of law for the court is also problematic. The State offers no suggestion what standards the court might apply. As the court in Europak observed, a criterion based on the number of cattle would not suffice. At one end of the spectrum is a remotely located ranch with human involvement limited to fencing, feeding, and other typical ranching activities. At the other end of the spectrum is a feedlot located within city limits that clearly interferes with a neighbors’ use of their property.

In between, the circumstances would run the gamut, so that making an evaluation of whether emissions are produced by natural processes is an inquiry best left to the fact finder. In the case before us, the court of appeals accepted the Europak and Southwest Livestock standards, yet decided that the odors from F/R were inherently the result of processes other than natural regardless of where located. We disagree that a court could make this determination as a matter of law. There is some evidence that F/R’s use is consistent with similar operations in the area.

While this factor alone does not establish F/R’s position as a matter of law, it nevertheless precludes the court of appeals from overturning the finding of the trial court on a legal sufficiency challenge. Accordingly, we remand this case to the court of appeals to review the State’s remaining factual sufficiency points. PHILLIPS, C.J., and HECHT, HIGHTOWER and CORNYN, JJ., join in the opinion and the judgment. ENOCH, J., concurs. SPECTOR, J., joined by DOGGETT and GAMMAGE, JJ., dissents. . Tex. Health & Safety Code §§ 382.001-141 (Vernon 1992). .

The Texas Air Control Board was abolished on September 1, 1993, and all its powers, duties, responsibilities, and functions were transferred to the Texas Natural Resource Conservation Commission, pursuant to Act of July 30, 1991, 72nd Leg., 1st C.S., ch. 3, § 1.086, 1991 Tex. Gen.Laws 4, 42. . The definition was renumbered in 1991, although the language remained the same. § 2.01, 1991 Tex.Gen.Laws at 46. . In Smith v.

Padgett, the court of appeals held that for purposes of the agricultural use classification of property for ad valorem taxes, the confined livestock operation under consideration was not the raising of cattle under natural conditions. 596 S.W.2d at 533. The opinion is not entirely clear, however, whether or not the court of appeals was merely upholding a trial court finding in the face of a challenge to the sufficiency of the evidence. . The Attorney General’s office has prosecuted these proceedings on behalf of the Texas Air Control Board.

The Texas Department of Agriculture, however, has filed an amicus curiae brief in this Court generally supporting F/R’s position. . As noted in Europak, location is not the sole test. 507 S.W.2d at 891. Both Europak and Southwest Livestock arose in the context of agricultural pursuits clearly satisfying the first prong, emissions occurring in nature. Our holding should not be construed as affecting the Board's jurisdiction over industrial pollution. .

See Europak, 507 S.W.2d at 891 (rejecting a definition of natural processes as "processes occurring wholly apart from human intervention” on the grounds that it would leave little if any meaning to the statutory limitation set out in

section 382.003(2)). . Amended by Clean Air Act of Texas, 1967, 60th Leg., R.S., ch. 727, 1967 Tex.Gen Laws 1941; Act of May 16, 1979, 66th Leg., R.S., ch. 726, 1979 Tex.Gen Laws 1787; Act of May 27, 1985, 69th Leg., R.S., ch. 637, 1985 Tex.Gen Laws 2350; Act of July 30, 1991, 72th Leg., 1st C.S., ch. 3, 1991 Tex.Gen Laws 4. .

"Odors” were added to the list two years later, at the same time the legislature virtually created an exemption for cotton gins, even though some said that they were "one of the worst sources of pollution known to man.” Norvell & Bell, Air Pollution Control in Texas, 47 TEX.L.REV. 1086, 1095 & n. 62 (1969) (discussing history of 1967 act); Clean Air Act of Texas, 1967, 60th Leg., R.S., ch. 727, §§ 2(A), 6(C), 1967 Tex.Gen.Laws 1941, 1942, 1948. . The dissent argues that our decision today forces average rural citizens like those of Erath County to bear the odors emanating from feedlots.

The argument prejudges what the court of appeals may hold on remand. Moreover, even in cases in which agency enforcement is lacking, affected persons are not without a legal remedy. Texas Health and Safety Code

section 382.004 specifically provides that the Act does not affect the right of a private person to pursue any and all common-law remedies available to abate or recover damages for a condition of pollution, such as a nuisance action.