                            QBfficeof ttp !&tornep QBeneral
                                            atate of ‘Qexae
DAN MORALES                                    Janualy28.1993
 *TT”RNEY
       GENERAL
      Lawrence R. Jacobi, Jr., P. E.                     Opinion No. DM-198
      General Manager
      Texas Low-Level Radioactive                        Re: Whether section 402.272(a), 402.2721,
       Waste Disposal Authority                          or 402.273(b) of the Health and Safety Code
      7701 North Lamar Blvd., Suite 300                  requires the Texas Low-Level Radioactive
      Austin, Texas 78752                                Waste Disposal Authority to impose waste
                                                         disposal fees or planning and implementation
                                                         fees suflicient to reimburse the general
                                                         revenue fund for interest on amounts received
                                                         from the tbnd to fhtance the pre-operation
                                                         expenses of the low-level radioactive waste
                                                         disposal site (RQ-125)

      Dear Mr. Jacobi:

              The Texas Low-Level Radioactive Waste Disposal Act (the “act”) is codified as
      chapter 402 of the Health and S&y Code. Health & Safety Code $402.OOl.t The act
      requires the Texas Low-Level Radioactive Waste Disposal Authority (the “authority”) to
      develop and operate a facility in Texas for the disposal of low-level radioactive waste. Id.
      $6 402.002(c); 402.003(7); 402.052.2 The expenses of the authority in so doing are to be
      paid in part from waste disposal fees, planning and implementation fees, proceeds f?om the
      sale of bonds, and legislative appropriations. Id. 5 402.271. We understand you to ask
      whether section 402.272(a), 402.2721, or 402.273(b) of that chapter requires the
      authority to impose a waste disposal fee or a planning and implementation fee sufficient to
      reimburse the general revenue fbnd for interest on amounts received from the &nd to
      Snance the pre-operation expenses of the low-level radioactive waste disposal site. We
      conclude that they do.

              When read together, sections 402.272(a), 402.2721, and 402.273(b) require the
      authority to recover all pm-operation expenses of selecting seeking approval for,
      characterizing, constructing, and licensing a disposal facility as part of the planning and
      implementation fee or as part of the waste disposal fee in the event bonds are not issued

             %ee Acts 1989,71st   Leg., ch. 678.5    1, at 2762 (difying   the act).

             2See also Health & Safety Code 5 402.212(a) (authorizing authority to contract with a political
      mMtvision,an agency of the state, or a privateentity to operatethe completedfacility).




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Lawrence    R   Jacobii Jr., P. E.   -   Page 2   (DM-198)




under subchapter K.s See Gov’t Code 8 3 11.026(a) (Provision of Code Construction Act
stating that effect should be given to both general and specific provisions where possible).
If the pm-operation expenses are recovered through the waste disposal fee. section
402.273(b) requires in addition that the pre-operation expenses be amortized over 20
years starting with the date the disposal faciity begins operations.

       We now turn to the relevant language of those sections.                  Section 402.273(b)
provides:

                If the authority does not issue bonds under subchapter K, the
            waste disposal fees must also include an amount st@cfent to allaw
            the authority to recover expenses incurred before beginning
            operation of the a%pxaI site amom’zedover a period of not more
            than 20 years beginningon thefirst day of operation of the diqwsal
            site.4 [Footnote and emphasis added.]
The emphasized language is identical to that enacted in 1981 by Senate Bii 1177, the bii
that created the authority and authorized it to develop a low-level radioactive waste
disposal facility. Acts 1981, 67th Leg., ch. 273, 3 4.02(c), at 725; see uko id. 4 3.04, at
717.


        The waste disposal fees to which section 402.273(b) refers are the fees that section
402.272(a) requires the authority to collect from persons who deliver low-level
radioactive waste to the disposal facility on its completion. See Acts 1981,67th Leg., ch.
273, 5 4.02(a), at 724 (almost identical language to that now cod&d as part of
5 402.272(a)).     Section 402.272(a), as amended by Senate Bii 2 during the 72d
Legislature’s first called session, also requires the authority to coilect a planning and
implementation fee. Acts 1991, 72d Leg., 1st C.S., ch. 3, 8 5.01, at 73. The amended
section 402.272(a) further provides in pertinent part that the waste disposal fee and the
planning and implementation fee:

            shall as closely as possible allow the [authority’s] board to reimburse
            itself for the present costs of administering, implementing and


         %uhchaptee K was added to the act during the 1991 regular session See Acts 1991,72d Leg.,
ch. 804, p 8, at 281250.    That sakchaptar aathorim the authority to issue rwanue bonds “to rcimbwx
tbc~-~fundforthearpenscsinnrrrcdand~dbythcauthori~inseleaing,~
approval for, aad amsmctiag a disposal site.” H&h & &fcIy &de 5 402.291(a)(l).         Whether or not
tads are issuad, section 402.273(a) cxprcssly requires the waste dispml fee to be tickat       to cover
variousfacilitymsts,includingoperatingandmaintmaacrcosts,RmrnfacilityclosingcoatSand
liwnairlgaudsecmitycosts.      Thcintmstwtpeoseatissuchacisaotoneoftbee~~lymumerated
coat.%

        ~samcbiuthataddedsubchapterKtothcactcnactcdacw~oa402.273@)and&letedtbe
language emphasized ahove from section 402.273(a)(2). Acts 1991,72d Leg., ch. 804.0 6, at 2816-17.




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Lawrence R Jacobi, Jr., P. E. - Page 3            W-198)




            planning the activities authorized by this chapter and to reimburse the
            gene-ml revenue timd for the expemes incurred and paid by the
            authority in selecting, .&ring approval for, and constructing a
            disposal site.
Id.; see a@ Health & Safety Code 5 402.003(3) (defbting “board” to mean the board of
diiectors of the authority).r

         The 72d Legislature subsequently added section 402.2721 to the act during the
first caged session to clarify that the plsnning and implementation~fbe is to be cokcted
currently and from a narrower class of persons than the waste disposal fee. Acts 1991,
72d Leg., ch. 5, 5 17.02, at 195-6. That narrower class excludes health care providers and
institutions of higher education, but includes persons licensed by the United States Nuclear
Regulatory Commission to operate t&d nuclear facilities in this state. Section 402.2721
provides in part that the planning and implementation fee shall:

            (1) include at least $5 million to reimburse the general revenue tknd
            for appropriations expended and incurred by the authority in
            selecting, characterizing, and licensing a disposal site; [and shall]

                 .

            (4) be deposited in the state treasury to the credit of the low-level
            waste Sued, except that at least $10 million assessed and collected in
            the 1992-1993 biennium to reimburse the general revenue timd for
            expenses incurred prior to September 1, 1991, shall be deposited in
            the state treasury to the credit of the general revenue fund.

Health & Safety Code §§ 402.2721@)(l), (4).‘j

        Sections 402.272(a), 402.2721, and 402.273(b) specifically require the authority to
collect a planning and implementation fee, or in the event revenue bonds are not issued, a
waste disposaJ fee, mflcient to reimburse the general revenue fund for pre-operation




         sTheauthorityhasadoptedmka       asessing plamdng and implancntation fees for the state’s 6scal
years 1992 and 1993. See Tex. Low-Level Radicactive Was& Dii              Auth., 16 Tex. Reg. 5718-19
(1991). ado@& 16 Tex. Reg. 7019 (coditied as 31 T.AC. $8 450.1- 450.4). We undmtandthatthefca
asMscdforfiscalyean1992and1993didnotinwbolcorpartnimbursechcgencral~~hudf~
the interest expense at issue here. The planning and implementation fee expires on the date the authority
@ins operation ofthe disposal tkility. Health & safety Code $402.2721(b)(6).




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Lawrence R. Jacobi. Jr., P. E. - Page 4           (DM-198)




expemes incurr~ or paid by the authority. These sections, however, do not expressly
require the recoupment of the interest expense at issue here. You ask, however, whether
the requirement in section 402.273(b) that the pm-operation expenses be umomked over a
period of not more than 20 years establishes the legislature’s intent that the waste disposal
fee be sutkient to reimburse the general revenue fbnd for the interest expense at issue
here. We conclude that it does.

         The act does not de&e “amortized.” Section 3 11,011 of the Code Construction
Act and Texas case law instruct us to construe words and phrases used in statutes
according to common usage. See 67 TEX. NR. 3d .!&r&s $ 100 (case authorities cited
therein). “Amortization” commonly refers to the allocation of the cost of an asset over its
estimated usel’bl life by periodic charges to expense or to the reduction in an obligation or
debt by periodic payments of principal usually with or at the same time as interest
payments. WEBSTER’STHIRDNEW INTERNATIONAL                DICTIONARYat 72; BLACK’SLAW
DKTIONARY 83 (6th 4. 1990); see also AmericanNat? Ins. Co. v. Schenck, 85 S.W.2d
833, 837 (Tex. Civ. App.--1935, no wit) (recognizing that contract at issue required
amortization of loan, that is, equal periodic principal and interest payments). Given the
common meaning of “amortization,” we conclude that the legislature intended the
authority to recover through the waste disposal fee the interest expense associated with
the general revenue timds used to develop and construct the disposal facility.’

         We also conclude that the legislature intended the interest expense at issue here to
be recouped through the planning and implementation fee. This result is supported by the
language added to section 402.272(a) in 1991 stating that both the waste disposal fee and
the planning and implementation fee must “reimburse the general revenue timd for the
expenses incurred and paid by the authority in selecting, seeking approval for, and
co~cting       a disposal site.” Section 402.2721(b)(4), also added to the act in 1991,
contains similar language requiring the planning and implementation fee to “reimburse the
general revenue fund for the expenses incurred prior to September 1. 1991.” Only if the
interest expense at issue here is recouped through the waste disposal fee or the planning
and implementation fee and the general fund reimbursed for financing that and other pre-
operation expenses will the state be made whole for Snancing all costs associated with the
disposal facility.*


         ‘See ah Bii Files to S.B. 1177 and H.B. 1533 (companion bill), 67th Leg. The bii analyses to
both of these bill8 state that “[e]xpenses of the authority would be chanced by user fees and legislative
appropriatiOnS.     Waste-disposal fees would be set high enough to allow the authority to
mcover . . . expemes illemd before 8ite opelation begins.” See generally How Study Group, Daily
FlcorRcports S/11/81 onH.B. 1533 and5/14/81 on S.B. 1177.

          *the Texas Comptroller of Public Accmmts estimated in a 1991 shdy that as of August 31.1990,
tha authority had inwrmd intereat eqenae of s4,294,ooa on the genmal mvemlc funds reaivcd through
that date. That amount we8 ealwlati wing an interest rate of eight percent compombd ammally On
$12,779,000, the amount the authority had received through direct and indirect appropriations from the
general rewenw fund through August 31, 1990. See Comptroller of Public Accmmts 2Cpt.2). BREAKNO



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LawrenceR    Jacobi, Jr.,P.E.   - Page 5    (DM-198)




        You also ask what interest rate should be used to calculate the interest owed the
general revenue iimd, at what intervals and to whom payment should be made, and finally
what is the appropriate mechanism for reimbursing the general revenue timd the interest
expense owed the Gnd.           Section 402.053 authorizes the authority to consult and
cooperate with other state agencies and to contract with such agencies as necessary to
carry out its responsibilities under chapter 402. These provisions authorize the authority
to consult with the Comptroller of Public Accounts and other appropriate state agencies to
establish the procedures necessary to reimburse the general revenue iimd for the interest
expense at issue here. Thus, although we cannot advise you how to proceed to reimburse
the general Suni, we conclude that you are authorized by statute to work with the
appropriate state agencies to select and implement the necessary reimbursement
procedures.

                                    SUMMARY

               Sections 402.272(a), 402.273(b), and 402.2721 of the Health
          and Safety Code require the Texas Low-Level Radioactive Waste
          Disposal Authority to recover as part of the planning and
          implementation fee or waste disposal fee the interest expense
          associated with amounts received from the general revenue Sued to
          finance the pm-operation expenses of the low-level radioactive waste
          disposal siie.




                                                    DAN      MORALES
                                                    Attorney General of Texas




(fwiMueconlinuul)
THEMOLE NEW WAYS TOGOVERNTEXAS at NR% (July 1991) (also    statinglegislatureintendedalI cc6t.s
lx reimbumd thmugb di8p88l fees).



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Lawrence R. Jacobii Jr., P. E. -   Page 6   (DM-198)




WILL PRYOR
Fii Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAlmKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Celeste A Baker
Assistant Attorney General




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