                       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&gtot&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
