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 

7701 North 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 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 private entity to operate the completed facility). 

p. 1046 
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’zed over a period of not more 

than 20 years beginning on the first 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. 

p. 1047 
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). 

p. 1048 
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’S THIRD NEW INTERNATIONAL DICTIONARY at 72; BLACK’S LAW 

DKTIONARY 83 (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 

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 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 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 

P. 1049 
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) 

THE MOLE NEW WAYS TO GOVERN TEXAS at NR% (July 1991) (also stating legislature intended alI cc6t.s 

lx reimbumd thmugb di8p88l fees). 

p. 1050 
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 

p. 1051