                              @ffice of tiy Bttornep @eneral
                                      &ate of Q.Lexas
DAN MORALES                                     October 31.1991
 ATTORNEY
      GENERAL

    Robert A. MacLean, M.D.                              Opinion No. DM-52
    Acting Commissioner of Health
    Texas Department of Health                           Re: Whether Health and Safety Code
    1100 West 49th Street                                section 361.013(a) sets the fee for solid
    Austin, Texas 78756-3199                             waste disposal as the amount equal to the
                                                         greatest of three factors: the weight of
                                                         de waste, the volume of the compacted
                                                         waste, or the volume of the uncompacted
                                                         waste (RQ-196)

    Dear Dr. MacLean:

           You have asked our opinion on the proper construction of the second and
    third sentences of section 361.013(a) of the Health ,and Safety Code. Section
    361.013(a) in its entirety reads:-

                     (a) Except as provided by Subsection (e), the [Texas
                Department of Health] shall charge a fee on solid waste that is
                disposed of within this state. The fee is the greater of 50 cents
                per ton or, for compacted solid waste, 50 cents per cubic yard or,
                for uncompacted solid waste, 10 cents per cubic yard received
                for disposal at a landfill. The department shall set the fee for
                sludge or similar waste applied to the land for beneficial use on
                a dry weight basis* and for solid waste received at an incinerator
                or a shredding and cornposting facility at half the fee set for
                solid waste received for disposal at a landfill. The department
                may charge comparable fees for other means of solid waste
                disposal that are used. (Footnote added.)




             ‘By using tbc phrase ‘dry might b&            the statute requires land6Xl operators to charge
    disposal fees only for tbat part of the sludge found to be. solids; tbc landfdl operator may not charge for
    ‘be water present in sludge.




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       In section 9.13 of House Bill 11, enacted during the first called session, the
72d Legislature amended the second sentence of section 361.013(a) to read as we
have quoted it above: ‘The fee is the greater of 50 cents per ton or, for compacted
solid waste, 50 cents per cubic yard or, for uncompacted solid waste, 10 cents per
cubic yard received for disposal at a landfill.” Prior to its amendment, the second
sentence of section 361.013(a) read: “The fee is 50 cents per ton or 17 cents per
cubic yard of compacted solid-waste Md 10 cents per cubic yard of uncompacted
solid waste received for disposal at a landfill.” (Emphasis added.)

       Under section 361.013(a) before the legislature amended it in August of this
year, the Department of Health (the department) collected on each load of solid
waste a fee equal to either 50 cents per. ton or, if the waste was delivered in
compacted form, 17 cents per cubic yard and, if the waste was delivered in
uncompacted form, 10 cents per cubic yard. In other words, regardless of the form
of the solid waste, the landfill operator could calculate the proper disposal fee either
by the ton or by the cubic yard (with different rates set for compacted and
uncompacted waste, depending on the form in which the waste was delivered). Both
of the two cubic yard rates produced fees approximately equivalent to 50 cents per
ton.

       As amended by the 72d Legislature, the second sentence of section
361.013(a) of the Health and Safety Code can bc interpreted in at least two ways.
The first possible interpretation (Interpretation One) requires the department to
calculate the disposal fee for a given load of waste by comparing the weight and
volume of the waste, calculated both as compacted and uncompacted (regardless of
the form in which the waste is delivered to the landfill). Thus, under Interpretation
One, the department collects as a disposal fee the greatest of three possible fees.
The second interpretation (Interpretation Two) also requires the department to
calculate the disposal fee by comparing the weight and volume of the waste, but the
department determines the cubic yard amount eifkr as compacted waste or uncom-
pacted waste, depending on the actual nature of the load. Under Interpretation
Two, the department collects the greater of two possible fees.2




         *Interpretation Two provides for fees calculated in approximately the same way as calculated
under the previous second scntcnce of section 36LOl3(a); tbe only difference (ii addition to the
increased amount charged per cubic yard of compacted waste) is that the amended statute directs the
department to colled thegnlrrcr of the two possible fees.




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Robert A. MacLean. M.D. - Page 3                 (DM-52)




        The problem in interpreting the amended second sentence of section
361.013(a) stems from the fact that the legislature changed the “and”in the previous
statute to an “or”in the current statute. Accordingly, the department asks whether
the amended second sentence requires it to calculate all three possible fees and
charge the greatest fee possible (that is, to follow Interpretation One).

       Tbe word “or” indicates a choice between two alternatives, generally
corresponding to “either” or “either this or that.” Gwvr v. Phillips, 410 S.W.2d 202,
206 (Tex. Civ. App.-Houston 1966, writ refd n.r.e.) (citing Motion v. Swaim, 220
S.W.2d 493 (Tex. Civ. App.-Eastland 1949, writ refd n.r.e.)); see ako Attorney
General Opinion M-154 (1967) at 4. We believe the second sentence of section
361.013(a) includes two sets of choices between two alternatives, not one choice
between three alternatives. The landfill operator must determine whether solid
waste is compacted or uncompacted to compute the fee on a volume, or “cubic yard”
basis. Then he determines which is greater, the fee computed per ton of weight, or
the fee computed on volume. The first “or”in the sentence in question indicates the
choice between computing the fee by weight or volume, and the second. “or”
indicates the decision between two volume-based ~fees,depending on whether the
solid waste is compacted or uncompacted.

       Moreover, construing the second sentence to require the department to
charge the greatest of three possible fees is inconsistent with the legislature’s use of
.the word “greater.” Normally, a word in its comparative form (-er) indicates a choice
between two options, while a word in its superlative form (-ert) indicates a choice
among more than two options. As the legislature used the comparative form, it
appears to have intended the department to set the fee for disposing of a load of
solid waste by choosing between two numbers, not three.

       Indeed, we must construe, the second sentence to provide the department a
choice between two fees if we ,are to give effect to all the language and every part of
the statute where it is reasonably possible. Walden v. Royal Globe h. Co., 577
S.W.2d 296,300 (Tex. Civ. App.-Beaumont 1978, writ ref d n.r.e.); see aho Black v.
American Bankers Inr. Co., 478 S.W.2d 434, 437 (Tex. 1972). In practice,
Interpretation One of the second sentence of section 361.013(a) always will require
the department to charge 50 cents per cubic yard as if every load of waste were
compacted, because that amount always will be the greatest of the three possible




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amounts.3 To accept Interpretation One, then, we effectively would obviate the
need for the department to calculate by the ton or by the cubic yard “uncompacted,”
and so would render inoperative two clauses of the second sentence of section
361.013(a). On the other hand, by accepting Interpretation Two, we give effect to
the additional clauses, as the department will have to calculate different fees
dependent on whether the waste is in compacted or uncompacted form. In our
opinion, Interpretation Two gives effect to a greater part of the second sentence
than Interpretation One.~ We therefore conclude that the amended second sentence
of section 361.013(a) permits landfill operators to continue using the two basic
methods of calculating the disposal fee, either by the ton or by the cubic yard.

        Your second question, centering on the third sentence of section 361.013(a),
asks whether “the fee for sludge or similar waste applied to the land for beneficial
use on a dry weight basis and for solid waste received at an incinerator or a
shredding and composting facility” requires a determination of fees pursuant to the
second sentence of the provision. You state that the department considers sludge to
be compacted, since technically it cannot be compacted further? Additionally, you
state that the department usually considers incinerator wastes only by the ton, since
the .mcinerator capacity is measured by the tonnage burned.

        When the 72d Legislature amended section 361.013 this past August, it
changed only the second sentence of subsection (a). The third sentence remains
unchanged from the time it was enacted as part of Senate Bill 43 during the sixth
called session of the 71st Legislature. S.B. 43, Acts 1990,71st Leg., 6th C.S., ch. 10,
art. 2, 0 3, at 53. The legislative history and bill analysis of Senate Bill 43 and its
unenacted predecessor in the regular session of the 71st Legislature shed no light on
the legislative intent behind the third sentence of section 361.013(a).5 In such a



          %hat the fee calculated as if tbe~wastcwere delivered in compacted form and measured by the
cubic yard always is the greatest of the three possible fees underlines tbc dilemma lamltidl operators
face. Tbc correct disposal fee for a load of compaetcd waste is easy to c&olate based on tbc amended
statute, but landfdl operators are unsure whether, when a load of unwmpacted waste arrives. they must
charge the higher cubic yard ‘compacted” rate or whether they can charge by the ton or by tbe cubic
yard “uncompacted”rate, which results in a lower disposal fee.

        ‘For purpose of this opinion, we accept your assumption that sludge is compacted.

       5Regardiog the third sentence of section 36LOl3(a) of the Health and Safety Code, the House
Research Organization’s bii analysis basically restated the provision in section 361.Ol3(a):




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situation, we must infer the legislature’s intent from the plain meaning of the words
it has chosen. Attorney General Opinions C-83 (1963) at 2; WW-1489 (1962) at 3;
WW-1195 (1961) at 34.

       On its face, this sentence requires the department to calculate the fee for
sludge and similar waste applied to the land for beneficial use and for solid waste
received at an incinerator or shredding and cornposting facility exactly the same as
the department calculates the fee for other solid waste, except that the department
is to charge only half as much. Thus, for each load of sludge received, the
department must charge; on a dry weight basis, the greater of 25 cents per ton or 25
cents per cubic yard of compacted waste. For each load of solid waste received at
anincinerator or shredding and composting facility, the department must charge the
greater of 25 cents per ton or, if the waste is delivered in compacted form, 25 cents
per cubic yard and, if the waste is delivered in uncompacted form, 5 (five) cents per
cubic yard.

                                          SUMMARY

                The second sentence of section 361.013(a) of the Health
           and Safety Code requires the department to charge a fee for
           solid waste disposal that equals the greater of two amounts: if
           the waste is delivered in compacted form, the department is to
           charge the greater of 50 cents per ton or 50 cents per cubic yard;
           if the waste is delivered in uncompacted form, the department is
           to charge the greater of 50 cents per ton or 10 cents per cubic
           yard. The third sentence of section 361.013(a) of the Health and
           Safety Code requires the department to charge as a fee for the
           disposal of sludge half of the amount it would receive for
           compacted solid waste received at a landfii. The third sentence
           also requires the department to charge as a fee for the disposal
           of solid waste received at an incinerator or a shredding and

        me department] would set fees for sludge or similar waste placed on land for
        beneficial USCand for solid waste received by an incinerator for a shredding and
        composting facility at one-half the fee set for that of solid waste at a landlii. It would
        allow [the department] to set comparable fees for other means of disposing solid
        waste. rhe department] could adjust these waste disposal fees depending on the
        amount appropriated to the department by the Legislature.

House Research Organization, Bii Analysis, S.B. 1519,7lst Leg., 6th C.S., at 2 (1989).




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Robert A. MacLean, M.D. - Page 6             (DM-52)




         composting facility half the amount it would receive for either
         compacted waste or uncompacted waste, depending on the form
         in which the waste is delivered.




                                                  DAN      MORALES
                                                  Attorney General of Texas

WJLL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEJNE B. JOHNSON
Chair, Opinion Committee

Prepared by Kym Oltrogge
Assistant Attorney General




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