## QBffice of ttp !&tornep QBeneral

DAN MORALES *TT”RNEY GENERAL 

## atate of‘Qexae Janualy28.1993

Lawrence R. Jacobi, Jr.,P. E. General Manager Texas Low-Level Radioactive Waste Disposal Authority 7701North Lamar Blvd., Suite 300 Austin, Texas 78752 Opinion No. DM-198

Re: Whether section 402.272(a), 402.2721,
or 402.273(b) of the Health and Safety Code requires the Texas Low-Level Radioactive 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 afacility in Texas for the disposal oflow-level radioactive waste. Id. 

### $6402.002(c);402.003(7);402.052.2 The expenses ofthe authority in so doing are to be paid inpart from waste disposal fees, planning andimplementation fees, proceeds f?omthe sale of bonds, and legislative appropriations. 

### Id. 5402.271. We understand you to ask whether section 402.272(a), 402.2721, or 402.273(b) of that chapter requires the authority to impose awaste disposal fee or aplanning 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 theact).

2Seealso Health & Safety Code 5402.212(a) (authorizing authority to contract with a political mMtvision,

anagency ofthestate,oraprivateentitytooperate thecompleted

facility).

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under subchapter K.s See Gov’t Code 8311.026(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 toallaw the authority to recover expenses incurred before beginning operationofthea%pxaIsiteamom’ zed overaperiod ofnotmore than20yearsbeginning

onthe first dayofoperationofthediqwsal site.4 [Footnote and emphasis added.]
The emphasized language is identical to that enacted in 1981by 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, 34.02(c), at 725; see uko 

### id.43.04, at 717.
The waste disposal feesto which section 402.273(b) refers arethe 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, 54.02(a), at 724 (almost identical language to that now cod&d as part of 5402.272(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., 1stC.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 aspossible 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 issuerwanue bonds “to rcimbwx tbc~-~fundforthearpenscsinnrrrcdand~dbythcauthori~inseleaing,~ approval for, aad amsmctiag a disposal site.” H&h & &fcIy &de 5402.291(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 ahovefrom section 402.273(a)(2). Acts 1991,72d Leg., ch. 804.0 6, at 2816-17.

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planning the activities authorized bythis 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.;seea@ Health & Safety Code 5402.003(3) (defbting “board” to mean the board of diiectors ofthe 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, 72dLeg., ch. 5, 5 17.02, at 195-6. That narrower class excludes health care providers and institutions ofhigher education, but includes persons licensed bythe United States Nuclear Regulatory Commission to operate t&d nuclear facilities in this state. Section 402.2721 provides inpart 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 adisposal 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 ofthe general revenue fund.
Health & Safety Code §§402.2721@)(l), (4).‘j

Sections 402.272(a), 402.2721, and402.273(b) specifically require the authority to collect aplanning and implementation fee, or inthe event revenue bonds are not issued, a 

### waste disposaJ fee, 

### mflcient to reimbursethe general revenue fund for pre-operation

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

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expemes incurr~ or paid by the authority. These sections, however, do not expressly require the recoupment ofthe interest expense atissue here. You ask, however, whether the requirement in section 402.273(b) that the pm-operation expenses be

### umomkedovera period ofnot more than 20years 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 311,011 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 ofthe cost of an asset over its estimated usel’bllifebyperiodic 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’S THIRD NEWINTERNATIONAL

DICTIONARY

at 72; BLACK’S

LAW DKTIONARY83 (6th 4. 1990); see also 

### American Nat?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 berecouped 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 ifthe 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 preoperation expenses will the state be made whole for Snancing all costs associated with the disposal facility.*

‘See ah Bii Files to S.B. 1177 andH.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.” SeegenerallyHow StudyGroup,Daily FlcorRcports S/11/81 onH.B. 1533 and5/14/81 on S.B. 1177.

*the Texas Comptroller ofPublicAccmmts estimated ina 1991 shdy thatas ofAugust 31.1990, tha authority had inwrmd intereat eqenae of s4,294,ooa on the genmal mvemlc funds reaivcd through that date. That amount we8ealwlati 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 PublicAccmmts 2Cpt.2). BREAKNO

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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 ofPublic 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 Suedto finance the pm-operation expenses ofthe low-level radioactive waste disposal siie.

DAN MORALES Attorney General ofTexas

(fwiMueconlinuul) THE MOLE NEW

WAYSTOGOVERN

TEXASatNR%(July1991) (alsostatinglegislature intended alIcc6t.s lx reimbumdthmugbdi8p88lfees).

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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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