Can the Texas low-level radioactive waste authority base its impact-assistance fund on planning and implementation fees?

Plain-English summary

The Texas Low-Level Radioactive Waste Disposal Authority funds an "impact assistance allocation," money set aside to compensate the local governments near a disposal site for the extra costs the site imposes (added services, public works, planning). The Authority collects two kinds of fees: waste disposal fees, paid by those who deliver waste to the site, and (added by the Legislature in 1991) planning and implementation fees, paid by people licensed to possess radioactive material or operate a nuclear power plant. The general manager asked whether the board could adopt a rule designating at least 10 percent of the planning and implementation fees for impact assistance.

The Attorney General said no. The controlling statute, section 402.273(c) of the Health and Safety Code, sets the minimum impact assistance allocation as "not less than 10 percent of the annual gross receipts from waste received at the disposal site," with a per-generator cap. Planning and implementation fees are not "receipts from waste received at the disposal site," so by the plain language the minimum allocation is tied to waste disposal fees alone. The manager's worry was practical: because adding the new planning fees as a revenue source lets the board lower waste disposal fees, and the allocation floor is keyed to waste disposal fees, the dollars available for impact assistance could shrink. The opinion answered that if the Legislature had wanted the allocation keyed to planning fees, it could have said so; it did not, and the words control. An agency has only the powers the statute gives it (plus those necessarily implied) and cannot add burdens or change the formula by rule. So the board could not designate a percentage of planning fees for the allocation. It could, however, increase the allocation by using more than 10 percent of waste disposal receipts (up to the cap), and it could use planning and implementation money to pay the allocation once the percentage had been set against waste disposal fees.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Low-Level Radioactive Waste Disposal Authority and the chapter 402 fee provisions described here were substantially restructured after 1992 (the Authority was later abolished and its functions reassigned), so verify the current statutory scheme before relying on this opinion.

Background and statutory framework

The Legislature created the Authority to take jurisdiction over selecting, preparing, constructing, operating, maintaining, decommissioning, closing, and financing low-level waste disposal sites. Health & Safety Code §§ 402.051, 402.052. The Authority funds its expenses from the fees it collects under subchapter J of chapter 402. One of those is the waste disposal fee, charged to every person who delivers low-level waste for disposal, set by the board based on volume and the relative hazard of the waste. The board had to set that fee at a rate sufficient to meet the Authority's expenses, including an amount designated for impact assistance allocation.

The impact assistance allocation exists because building and operating a disposal site near a political subdivision causes that subdivision to incur costs for added governmental services, public works, and planning. The allocation makes funds available to those affected subdivisions, with a citizens' advisory council recommending the distribution. Health & Safety Code §§ 402.031(a), 402.252-402.254. Section 402.273(c) (renumbered in 1991 from section 402.273(b), without substantive change) provided that the amount designated by the board as available for impact assistance "may not be less than 10 percent of the annual gross receipts from waste received at the disposal site and may not exceed $300,000 a year for each generator," with a $500,000-for-two-consecutive-years ceiling during periods of unusual volume.

In 1991 the Legislature added planning and implementation fees, collected from persons licensed to possess or use radioactive material or to own or operate a nuclear power plant (Health & Safety Code § 402.2721), and created the low-level waste fund, an interest-bearing treasury fund into which the Authority deposits its money (Health & Safety Code § 402.275). Adding the planning and implementation fees gave the Authority a new revenue source, which created an inverse relationship: the more the board raises through planning and implementation fees, the less it needs to raise through waste disposal fees. Because the allocation floor is keyed to waste disposal receipts, the manager feared the money available for impact assistance would fall.

The opinion held the statute's language controlled. Section 402.273(c) is "clear and unambiguous" and is enforced according to its words. Central Education Agency v. Independent School District of City of El Paso, 254 S.W.2d 357, 360 (Tex. 1953). Planning and implementation fees are not "receipts from waste received at the disposal site," so the minimum allocation remained a percentage of waste disposal fees only. Had the Legislature wanted otherwise, it could have said so. The board's rulemaking power under section 402.054 did not let it change that: administrative agencies have only the powers expressly conferred or necessarily implied, Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887, 892 (Tex. 1968); Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961), and may not impose by rule "additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory provisions," Kelly v. Industrial Accident Board, 358 S.W.2d 874, 876-77 (Tex. Civ. App.-Austin 1962, writ ref'd). So the board could not base the allocation on planning fees, though it could exceed 10 percent of waste disposal receipts (up to the cap) and could use planning and implementation monies to pay the allocation once the percentage was set against waste disposal fees. The opinion declined to reach the manager's second and third questions.

Common questions

Can the waste authority's board set aside a slice of planning fees for impact assistance by rule?
No. The opinion concluded that section 402.273(c) keys the impact assistance allocation to "annual gross receipts from waste received at the disposal site," which are the waste disposal fees. Planning and implementation fees are not such receipts, and the board cannot change that formula by rule.

Can the board still pay impact assistance out of planning fee money?
Yes. The opinion distinguished how the allocation is calculated from how it is paid. The percentage must be set against waste disposal receipts, but once the board has designated that percentage, it may use planning and implementation monies in the low-level waste fund to actually pay the allocation.

How can the board increase the impact assistance amount?
By designating more than the 10 percent minimum of annual gross receipts from waste disposal fees, so long as the total does not exceed the statutory cap of $300,000 per year for each generator (or $500,000 per year for two consecutive years during periods of unusual volume).

Citations

• Health & Safety Code §§ 402.031(a), 402.051, 402.052, 402.054, 402.252-402.254, 402.271, 402.272(a), 402.273(a), (c), 402.275, 402.2721, 401.306(b); subchapter J of chapter 402
• Central Education Agency v. Independent School District of City of El Paso, 254 S.W.2d 357, 360 (Tex. 1953)
• Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887, 892 (Tex. 1968)
• Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961)
• Kelly v. Industrial Accident Board, 358 S.W.2d 874, 876-77 (Tex. Civ. App.-Austin 1962, writ ref'd)
• Shults v. State, 696 S.W.2d 126, 131 (Tex. App.-Dallas 1985, writ ref'd n.r.e.)
• Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946)
• Tex. Att'y Gen. Ops. JM-1017 (1989), JM-1102

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0101
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0101.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 30, 1992

Mr. Lawrence R. Jacobi, Jr., P.E.
General Manager
Texas Low-Level Radioactive Waste Disposal Authority
7701 North Lamar Blvd., Suite 300
Austin, Texas 78752

Opinion No. DM-101

Re: Whether the board of directors of the Texas Low-Level Radioactive Waste Disposal Authority may designate by rule for use as impact assistance allocation not less than ten percent of the planning and implementation fees assessed and deposited to the low-level waste fund and related questions (RQ-257)

Dear Mr. Jacobi:

You ask the following questions:

(a) Does the Texas Low-Level Radioactive Waste Disposal Authority's Board of Directors have the statutory authority to order by rule that not less than 10 percent of those planning and implementation fees assessed and deposited to the low-level waste fund be set aside or designated for impact assistance?

(b) If the answer to (a) is yes, when could such assistance funds be paid to affected political subdivisions?

(c) If the answer to (a) is yes, what are the available financial and budgetary mechanisms available to the Authority, the State Comptroller, and the State Treasury to set aside this money?

As we believe the Texas Low-Level Radioactive Waste Disposal Authority's (the authority) Board of Directors (the board) lacks statutory authority to designate, for use as impact assistance funds, an amount not less than ten percent of the planning and implementation fees assessed and deposited to the low-level waste fund, we do not reach your second and third questions.

The legislature created the authority to take jurisdiction over selecting, preparing, constructing, operating, maintaining, decommissioning, closing, and financing low-level waste disposal sites in the state. Health & Safety Code §§ 402.051, 402.052. Prior to the seventy-second legislature, the code required the authority to raise, from fees the authority collected pursuant to subchapter J, enough funds to pay its expenses. Acts 1991, 72d Leg., ch. 804, § 5, at 2816. One of the fees subchapter J authorized the authority to collect was a waste disposal fee from every person who delivered low-level waste to the authority for disposal. Acts 1989, 71st Leg., ch. 678, § 1, at 2778 (former Health & Safety Code provision, amended by Acts 1991, 72d Leg., 1st C.S., ch. 3, § 5.01). While the board sets the waste disposal fee taking into consideration the volume of low-level waste delivered for disposal and the relative hazard each type of low-level waste delivered to the disposal site, the board had to adopt a waste disposal fee rate sufficient to meet the authority's expenses including an amount designated for use as impact assistance allocation. Id. (former Health & Safety Code § 402.273(a)(4), amended by Acts 1991, 72d Leg., ch. 804, § 6); see infra pp. 2-3 (describing impact assistance allocation).

The legislature required the authority to provide funds for impact assistance allocation because the legislature recognized that the construction and operation of a low-level waste disposal site in or adjacent to a political subdivision would cause the affected subdivision to incur expenses for additional governmental services, public works projects, and planning. Accordingly, the impact assistance allocation ensures that funds are available for allocation to affected political subdivisions to compensate for impacts associated with the disposal site. Health & Safety Code §§ 402.031(a) (creating citizen's advisory council), 402.051; see id. §§ 402.252-402.254 (establishing procedures by which citizen's advisory council shall prepare recommendation for distribution of impact assistance allocation). The code directed the board to designate as the amount of money available for impact assistance allocation an amount not less than ten percent of the annual gross receipts from waste received at the disposal site and not more than $300,000 annually from each generator of low-level waste. Acts 1989, 71st Leg., ch. 678, § 1, at 2778 (former Health & Safety Code § 402.273(b), amended by Acts 1991, 72d Leg., ch. 804, § 6).

In 1991 the seventy-second legislature amended several provisions of subchapter J. Pertinent to the questions you pose, during its first called session the legislature passed House Bill 11, section 17.02 of which authorized the authority to collect a new kind of fee, planning and implementation fees. Acts 1991, 72d Leg., 1st C.S., ch. 5, § 17.02 (codified at Health & Safety Code § 402.2721); see also Health & Safety Code § 402.272(a). The board is to collect planning and implementation fees from each person in this state (except health care providers and institutions of higher education) who is licensed to possess or use radioactive material, or to own or operate a nuclear power plant in this state. Health & Safety Code § 402.2721(a).

Previously, during the seventy-second legislature's regular session, the legislature had passed House Bill 1757. See H.B. 1757, Acts 1991, 72d Leg., ch. 804. House Bill 1757, among other things, created the low-level waste fund, an interest-bearing fund in the state treasury into which the authority must deposit all money it receives unless the money statutorily is directed elsewhere. Id. § 7 (Health & Safety Code § 402.275(a)-(c)). The authority must deposit waste disposal fees to the credit of the low-level waste fund, Health & Safety Code § 402.275(c); the authority also must deposit planning and implementation fees into the low-level waste fund, except for a certain portion set by the code that the authority must use to reimburse the state's general revenue fund. Id. § 402.2721(b)(4). The authority may use the monies in the low-level waste fund to pay any and all of its expenses, including the impact assistance allocation. Id. § 402.275(d).

The addition of planning and implementation fees to the monies the authority is authorized to receive and collect represents a new revenue source from which the authority can pay its expenses. See id. § 402.271. As the board must set waste disposal fees and planning and implementation fees in amounts sufficient to allow the board to reimburse itself, as closely as possible, for the present costs of administering, implementing, and planning the activities subchapter J authorizes, and to reimburse the state's general revenue fund as the code requires, there is an inverse relationship between the amount the authority must collect as waste disposal fees and the amount the authority must collect as planning and implementation fees. Thus, the proportion of the authority's total expenses that the board must raise as waste disposal fees decreases as the proportion of total expenses the board raises through planning and implementation fees increases. You assert that, as a consequence, the amount of money the authority receives annually as waste disposal fees will decrease.

In all of the amendments made during 1991, the legislature did not make substantive changes to section 402.273(b) of the code, but merely renumbered it as section 402.273(c) and changed a reference to a subsection that was also renumbered to the appropriate cite. Section 402.273(c) reads as follows:

The amount required by Subsection (a)(3) [to compensate for impacts associated with the disposal site] and designated by the board as available for impact assistance allocation under this chapter may not be less than 10 percent of the annual gross receipts from waste received at the disposal site and may not exceed $300,000 a year for each generator of low-level waste. However, during periods of unusual volume generation caused by unscheduled refueling, unplanned outages, special maintenance, or system decontamination and decommissioning, the amount payable by the affected generator may not exceed $500,000 a year for two consecutive years.

Planning and implementation fees are not "receipts from waste received at the disposal site." Thus, according to the plain language of section 402.273(c), the minimum amount available for impact assistance allocation remains a result of the amount the authority receives from waste disposal fees. With this decrease foreseen in the amount of waste disposal fees received, you are concerned that the amount of money available for designation as impact assistance allocation will drop. You contend that the legislature did not intend this result.

However, the language of section 402.273(c) is clear and unambiguous, and therefore will be enforced according to its words. Central Education Agency v. Independent School District of City of El Paso, 254 S.W.2d 357, 360 (Tex. 1953). If the legislature had wished to amend subsection 402.273(c) to require the authority to designate for use as impact assistance allocation a certain percentage of the amount it receives from planning and implementation fees, it easily could have done so. Hence, we conclude that the legislature intended exactly what it said: that the minimum amount of money available for impact assistance allocation be a percentage, no less than ten percent, of the amount of money the authority receives from waste disposal fees only.

You ask, therefore, whether the board may order by rule that ten percent of the amount of money the authority receives from planning and implementation fees be designated as available for impact assistance allocation. The legislature granted to the board the power to "adopt rules, standards, and orders necessary to properly carry out this chapter and to protect the public health and safety and the environment from the authority's activities." Health & Safety Code § 402.054. Administrative agencies have only those powers that expressly are conferred by statute, together with those necessarily implied from powers and duties expressly given or imposed. Attorney General Opinion JM-1102 at 2 (citing Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887, 892 (Tex. 1968); Stauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961)); JM-1017 (1989) at 3 (citing 2 TEX. JUR. 3d Administrative Law § 2 (1979)). An agency may not impose by rule "additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory provisions." Attorney General Opinion JM-1017 at 3 (quoting Kelly v. Industrial Accident Board, 358 S.W.2d 874, 876-77 (Tex. Civ. App.-Austin 1962, writ ref'd)). On its face, subsection 402.273(c) of the code requires that the amount the board designates as available for impact assistance allocation be at least ten percent of the annual gross receipts from waste received at the disposal site, and less than $300,000 per year for each generator of low-level waste. Clearly, the board would contravene its authority if it were to designate as available for impact assistance allocation a percentage of the annual gross receipts from planning and implementation fees. Of course, the board may increase the amount available for impact assistance allocation by using a percentage greater than ten percent of the annual gross receipts from waste disposal fees, so long as the amount does not exceed $300,000 per year for each generator of low-level waste.[9] Health & Safety Code § 402.273(c).

We note that while the plain language of the code does not permit the board to use the amount of annual gross receipts from planning and implementation fees to determine the amount of funds available for impact assistance allocation, the board may use planning and implementation monies to pay the impact assistance allocation once the board has designated the percentage of waste disposal fees received that will be available for impact assistance. See id. §§ 402.271 (authorizing authority to pay its expenses from fees it collects pursuant to subchapter J, Health and Safety Code), 402.272(a) (requiring board to deposit waste disposal fees and planning and implementation fees into fund used to pay expenses of administering low-level radioactive waste disposal activities), 402.275(c) (requiring authority to deposit all monies it receives pursuant to chapter 402, Health and Safety Code, to credit of low-level waste fund), 402.275(d)(6) (requiring authority to use money deposited into low-level waste fund for, inter alia, impact assistance funds for affected political subdivisions), 401.306(b) (requiring the Department of Health to deposit planning and implementation fees to credit of low-level waste fund).

As we conclude that the board may not order by rule that ten percent of the planning and implementation fees assessed and deposited to the low-level waste fund be designated for use as impact assistance allocation, we need not answer the remaining two questions you pose.

SUMMARY

The board of directors of the Texas Low-Level Radioactive Waste Disposal Authority may not designate by rule for use as impact assistance allocation a percentage of the planning and implementation fees assessed and deposited to the low-level waste fund pursuant to subchapter J of chapter 402 of the Health and Safety Code.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kym Oltrogge
Assistant Attorney General

[3] Pursuant to the rulemaking authority provided in section 402.054 of the Health and Safety Code, on November 27, 1991, the board issued planning and implementation fees for this state's fiscal years 1992 and 1993. See Tex. Low-Level Radioactive Waste Disposal Auth., 16 Tex. Reg. 5118 (1991), adopted 16 Tex. Reg. 7019 (1991) (codified at 31 T.A.C. §§ 450.1-450.4).

[9] During periods of unusual volume generation caused by unscheduled refueling, unplanned outages, special maintenance, or system decontamination and decommissioning, the board may not collect from the affected generator of low-level waste an amount greater than $500,000 per year for two consecutive years. Health & Safety Code § 402.273(c).

[10] The seventy-second legislature amended section 402.275, Health and Safety Code, twice during its regular session. See Acts 1991, 72d Leg., ch. 804, § 7; id. ch. 14, § 148. As both amendments specify that the authority may use monies in the low-level waste fund to pay impact assistance funds for affected political subdivisions, we do not discuss at this time whether the amendments harmonize or are irreconcilably repugnant. See Shults v. State, 696 S.W.2d 126, 131 (Tex. App.-Dallas 1985, writ ref'd n.r.e.) (quoting Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946) (stating rule that when conflicting acts passed during same legislative session, latter provision repeals former provision only if the latter provision expressly repeals former, or if provisions are irreconcilably repugnant)). The two amendments do number their subsections differently. In section 7 of chapter 804, the specification that money in the low-level waste fund may be used to pay impact assistance funds is numbered as Health and Safety Code section 402.275, subsection (d)(6); in section 148 of chapter 14, the same provision is numbered as Health and Safety Code section 402.275, subsection (d)(7). We use the numbering of chapter 804, section 7.