Untitled Texas Attorney General Opinion

Office of tip !Zlttornep @aterat Sdatr of Plcxas DAN MORALES March30,1!492 AlTORSkY GEXER.AI. Mr. LawrenceR. Jacobi,Jr.,P.E. Opinion No. DM-101 General Mauager TexasLow-LevelRadioactive Re: Whether the board of directors’of WasteDisposalAuthority the Texas Low-Level Radioactive Waste 7701North LamarBlvd.,Suite300 lXsposd Authoritymay designateby rule Austin,Tcxas 78752 foruseasimpactas&tau~allocationuot lesthauteupcrcentoftheplauniugaud iulpl~oufec5assessadauddepos- ftedrotllelow-le!velwasrefluldalld relatedqueduls (mm57) DeacMr.JacoE (a) Does the vexas L.ow-Level Rgc-lioactiveWaste DisposdAutbo&y%]BoardofDlrectorsbavetbestaruro~ authority~orderbyrulethatnotlesstban1Operoeniofthose plauuiugand implementationfees assess4 and deposited to the low-level waste fund be set aside or d&@ated for impact ZlSSiStaUW? (b) If the auswesto (a) is yes, when could suchasshtauce fuudsbe paid to affectedpoliticalsubdivisions? (c) If tbe auswer to (a). is yes, what are the available financialand budgem xuachanisms availableto the Authority, the State Comptroller, aud the State Thasury to set aside this money? p. 510 Mr. Lawrence R. Jacobi, Jr., P.E. - Page 2 (D~-lOl) As we believe the Texas LowLevel 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 C$§402051.402052 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 (former Health&safetycode~~71,amendedbyA~199~72dLeg,IstcS,ch.S, 0 17.01). One of the fees subchapter J authorized the authority to collext was a waste disposal fee Corn every person who delivered low-level waste to the authority for diqxxaL Acts 1989,7&t Leg., ch. 678,s l, at 2778 (former Health & safety We 0 40227&amended*Acts l99&72d.~.lsr-C.4!3~3~~ 5.01). While tie board~tos#thewastedisposalfaetaldnginto-~d~onthevolumeoflow- level waste delkred for dkposaland the relative-hazardeach type of low-l& wastcdcliveredtothedispasal~zid(formerHealth&SafetyCode §~),amendedbyActs1991726~~istcs,ch.3,Q5.01),thebo;ardhad t0ad0ptawastcdispo@feenUcsufEcicnttomectthe~seJrpemesinduding anamountdesignatedforuseaaimpactassistanceaUocation. Id (formerHealth& SafetyCode 0 402273(a)(4),amendedby Acts l99172d Leg., ch. 804,s 6); see infm pp- 2-3 (descriii impact assistance allocation). The legislature requikd the authorityto providefundsfor impactas&tame allocationbecausethe legislaturerecognizedthat the construction and operation of p. 511 Mr. Lawrence R. Jacobi Jr., P.E - Page 3 (DM-101) a low-level waste disposal site in or adjacent to a political subdivision3 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 05 402031(a)(creating citizen% advisory council), 402051; see id Q84022S2 - 402.254 (establishing procedures by which citizen’s advisory council shall prepare recommendation for distribution of impact assistance allocation). The code direct- ed 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 S300.000 annually from each generator of low-level waste.4 Acts 1989, 71st Leg-, ch. 678, 0 1, at 2778 (former Health&safety Code 0 4022730, amended by Acts 1991,726 Ieg., cb. 804. Q6). In 1991 the w legislature amended several provisions of mUapterJ. Pextixmtto&equestionsyoupose,duringits6rstcdkdscssionthe lcgsatmpa$scdHamem1~section17.02ofwhidlautll~thc~to co&uaoewkindoffec plamingandimpkmmtationfees. Acts1991,72dLc& Incs,&5,Q17-M(~atHealth.&safityc‘6de34M2721x.seealro Health & Safety Code.§402272(a). The ,board is to collect plannbig and lmplemmcaton fees from each Person in this state (except health care providers ~~~~ofhigher~~)whoislieensedtopossessoruseradioaaive mates% or to own or operate a tmdear Power plant in this states Health & Safety Code 0 4022721(a). Pmiously, during the sevenwnd legislature’s r@ar session, the legishmbad passedHouse Bi 1757. See m. 1757,Acts 199l, 72d Leg., ch 804. House Bill 1757, among other tbii created tbe low-level waste fund, an irtterest- sP~uant lo the mkmakhg authority pmvidcdin section402.054of the Health and Safety Code,eo Novcmlnx27.1991.the board‘muedplamiingand implementation feesfor thisstate’sGscal ycaml9!3?.and 1993.See Tcx. LoaFLevcRadioactiveWasteDisposalAuth, 16 Tu. Re&SlIa-!!i%’ (1991). adopted 16 Tcx.Rw 7019(1991) (codified at 31TA.C B 450.1-450.4). p. 512 Mr. Lawrence R. Jacobi Jr, P.E. - Page 4 (DM-1011 bearing fund in tbe state treasury into which the authority must deposit all money it receives unless tbe money statutorily is directed elsewhere. Id 8 7 (Health & Safety Code $0 402275(a)-(c)). The authority must deposit waste disposal fees to the credit of the low-level waste fund, Health & Safety Code $402275(c); the authority also must deposit planning and implementation fees into the low-level waste fund, except for a certain portion set by tbe code that the authority must use to reimburse the state’s general revenue fund.6 Id 0 4022721(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. $5402.275(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 5 402.271. As tbe board must set waste disposal fees and planning and implementation fees in amounts sufficient to allow the board to reimburse &se& as closely as possible, for tbe present costs of . . . adnnmsturng, implementing, and platming tbe activities subchapter J autborikes, ,artdtoreimbsetheWsgaaeralrevenuefnudastbecoderequingid34Mm, rhec&aeateaaninvene relatlonsbiphetweentbeamounrtlleallthorilymust ~as~wasledisposalfaesandtheamounttheauthorityncustcolledasplaMiag and lmpletimta+ fees.’ ‘Ihus, the proportion oftbe authority’s total expem% tbattbeboardmustraiseasivasted@osalfeesdecrea& as the proportion of total expmsestbeboardraisestbrongbpbmniugandimp~feu~ You assert thaf as a consequent the amount of money the authority receives annually aswastedkpoaalfeeswilldecmase. In all of tbe amendments made during 19!N.,the legislature did not make substamive ebanges to section 402.273(b) of tbe code., but merely renumbered it as p. 513 Mr. Lawrence R. Jacobi, Jr., P-E. - Page S @H-101) 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 ye+xrfor each generator of low-level waste. However, during periods of unusual volume generation caused by unscheduled refueling, unplanned outages, special main- tenance, or system decontamination and decommissioning, the amount payable by the afkcted generator may not exceed WJO,OOO a year for two cansectttive years. Flaming and impkmuttation fees are not “receipts from waste reeekd at the diqmsalsitc’ Ilms,acc4n>ot&eplainkmguageofsection4@2273(c),the mhlimmnamotmtavailaMeforimpact.anistanoeauocatiollremainsaulthgaolt thclmlotmtthe~aatharitgrecdvcs hmwastcdisposalfees. W~ththk&opyoy foresminUte amotmtofwaste&posalfeesreceiv~youareconeemedthatthe amopmtofmoney~lefordesignationasimpadassistanceallocationwilldrop -3 Ytm contendthatthe legislaturedid not in?zndthisresult. However, thelanguage of section 4Q2.273(c)is clear and unambiguous,land therefore will be enforced acaxding to its Words. cenbal E&c Agency v. Zndepmht Sdwol Dist of@y ofEl Paso, 254 S.W.2d 357,360 (Tex 1953). If the legkhtttre had wished to amend subsection402.273(c) to require the authorityto dcsigaatefor use as impactasistance allocationa certainpercentageof the amount it receivesfrom planningand implementationfees, ibasily could have done so. Hence, we condttde that the legislature intended exactly what it said: that the mhtimmu amount of money ,avaTlatilefor impact assistztrc75 albcation be-~a percentage, no less than ten percent, of the amount of money the authority receives fromwaste dkposal feeson&. p. 514 Mr. Lawrence R. Jacobi, Jr., P.E. - Page 6 fDt+loll 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 Opinions JM-1102 at 2 (citing Cobra Oil & Cm Corp. v. Sadler, 447 S.W.2d 887,892 (Tex. 1968); Stauffer v. Cify of San Antonio, 344 SW2d 158, 160 (Tex. 1961)) JM-1017 (1989) at 3 (citing 2 TEX. JUR. 3d Adnrinirirative Law 8 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 Kelry v. I- Acdday &t. 358 S.WZd 874,876-n (‘Tex.Civ. App.-Austin 1962, writ ref d)). On its hq subs&ion 402273(c) of the axle requires that the amount the board de+mtcs as available for lmpaet as&stance &xatlon be at leastten percent of tlte ammalgrossrooeiptsfromwastereoeivodatthedisposalsite,andlessthan~~ per yearfor cadt generatorof low-levelwaste. CXarly,the board would contravene its author@ if it were to designate as available for impact assistance allocation a paa&age of the annual gross receipts from planning and implementation fees. Of eotuse, the board may lttcrease the amount available for impact a&tance allocation by using a percentage greater than ten percent of the annual gross rccdpts from waste dkposal fees, so long as the antottnt does not exceed S3@&JOO per year for each generator of low-level waste.9 Health& SafetyCode 8 402273(c). We notethatwhile the plainlanguageof the code does not perniitthe board .to use the atnount of annual gross receipts from planning and implementation fees to dktetmhte the antottttt of funds available for impact assistance allocation, the board may use pkrmittg and impIeme$ation monk 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 08 402271 (authorizing authority to pay its expenses from fees it collects pur&tattt to subchapter J, Health and Safety Code), 402.272(a) (requiting board to deposit waste disposal fees and planning and implementation fees into fund used to pay expenses of administering hrhg puinds of unusualvolumegenekion causedby umcheduledrefueling.unplaaned outages,specialmaiateaana, er systemdecontam~ktionand deeommisionin&the beard may not tzc3ctfrom the affected gcn~or of low-level waste ari amount greatu lh s500,ow pa year for tara coocutiveycarrHcalth&SafetyCodc.~402.273(c). P- 515 Mr. Lawrence R Jacobi, Jr, P.E. - Page 7 (DM-101) low-level radioactivity 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)t0 (requiring authority to use money deposited into low-level waste fund for, infer dia. 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 Dii Authority may not designate by rule for use ‘ks impat a!si&a allocation a percentage of the planningand iniplementationfees asessed and deposited to the low-level waste fund pursuant. to subchapter J of chapter 4Q2 of the Health and Safety Code. DAN MORALES AttorneyGeneralof Texas “%c w I&hhu~ amendedsection402.275,He&h and SafetyCede, twice du&gaSr@arscssion See AUS 1991, ?.?d Leg., eh. 804.37; id.chJ4..§ 148 As.botbamcadm~. spccifythatthcauthoaitymayuscm~inthelow-ievclwastcfundtopayimpaaassistaacc~f0r z3tkdd @itid SUbdiviSiiopc, WC d not discuss at this time whether the amedments harmonize Or arc irreamcilabl~repugnant SeeShultrv. Stare,6% S.W.2d 126,l31 (Tex App.--Dallas l9g5, wit rePd n.u.) (quoting Mghr V.Em&r, 1% S.W2d g2, g5 (Tcx. 1946) (sating r~lc that when mhg acts pass4 during same legislative session, latter provision repeals former provision only if the latter provision cxprcssly rqreals forma, or if provisions are irreconcilably repugnant)). The two amendmentsdo numbertheir subr&ion.sdifferently. In seaion 7 of chapter804.the SpeCiftcatOU that moneyin the low-levelwastefundmay be used to pay impactAstance fundsis numbereda~ Health and Safety Code sect& 402.275, subsetion (d)(6); in section 148 of chapta 14, the Same provision is numbered as Health and Safety Code section 402k75, suMon (d)(7). WC UK the numbering of chapter 804, se&on 7. p. 516 Mr. kwrence R Jacobi. Jr., P.E. - Page 8 (DM-101) 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 hsistant Atscgey General p. 517