DAN MORALES

ATTORNEY GENERAL 

## @ffice of tiy Bttornep @eneral

&ate of

## Q.Lexas October 31.1991

Robert A. MacLean, M.D. Acting Commissioner ofHealth Texas Department ofHealth 1100West 49th Street Austin, Texas 78756-3199 Opinion No. DM-52

Re: Whether Health and Safety Code section 361.013(a) sets the fee for solid waste disposal asthe amount equal to the greatest of three factors: the weight of de waste, the volume of the compacted waste, or the volume ofthe 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) inits entirety reads:-

(a) Except as provided by Subsection (e), the [Texas Department ofHealth] shall charge a fee on solid waste that is disposed ofwithin this state. The fee is the greater of 50 cents per ton or, for compacted solidwaste, 50 cents per cubicyard 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 solidwaste 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‘drymight b& the statute requires land6Xl operators to charge disposal fees onlyfor tbat part ofthe sludge found to be.solids; tbc landfdl operator may not charge for

‘be water present insludge.

p. 263Robert A. MacLean, M.D. - Page 2 (DM-52)

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 of50 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 solidwaste received for disposal at a landfill.” (Emphasis added.)
Under section 361.013(a) before the legislature amended it in August ofthis 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, 10cents per cubic yard. In other words, regardless ofthe form ofthe solidwaste, 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 inwhichthe waste wasdelivered). Both ofthe 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 ofthe waste, calculated bothas 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 ofthe waste, but the department determines the cubicyard amount eifkr as compacted waste or uncompacted waste, depending on the actual nature of the load. Under Interpretation Two,the department collects the greater oftwopossible 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 cubicyard of compacted waste) is that the amended statute directs the department to colled thegnlrrcr ofthe two possible fees.

p. 264Robert 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 followInterpretation 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.) (citingMotion 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 iscompacted or uncompacted to compute the fee on avolume, or “cubicyard” basis. Then he determines which is greater, the fee computed per ton ofweight, 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 solidwaste iscompacted oruncompacted.
Moreover, construing the second sentence to require the department to charge the greatest ofthree possible fees isinconsistent with the legislature’s use of .theword “greater.” Normally, aword inits 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 solidwaste by choosingbetween twonumbers, not three.
Indeed, we must construe, the second sentence to provide the department a choice between two fees ifwe,areto giveeffect to all the language and every part of the statute where it is reasonably possible. Walden v. Royal Globe h. Co., 577 S.W.2d296,300 (Tex. Civ.App.-Beaumont 1978,writ refd n.r.e.); see aho Black v. American Bankers Inr. Co., 478 S.W.2d 434, 437 (Tex. 1972). In practice, Interpretation One ofthe second sentence ofsection 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

p. 265Robert A.MacLean, M.D. - Page 4 (DM-52)

amounts.3 To accept Interpretation One, then, we effectively would obviate the need for the department to calculate by the ton orby the cubicyard “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 ofcalculating the disposal fee, either bythe ton or bythe cubicyard.

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 ofthe 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 ismeasured bythe 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 ofthe 71stLegislature. S.B.43,Acts 1990,71st Leg., 6th C.S.,ch. 10, art. 2, 03, at 53. The legislative history and bill analysis of Senate Bill 43 and its unenacted predecessor inthe regular session ofthe 71st Legislature shed no light on the legislative intent behind the third sentence of section 361.013(a).5 In such a

%hat the feecalculated asiftbe~wastc were delivered incompacted formand measured bythe cubicyard always is the greatest ofthe three possible fees underlines tbc dilemma lamltidloperators face. Tbc correct disposal fee for aload ofcompaetcd waste iseasy to c&olate based on tbc amended statute, but landfdl operators areunsure whether, when aload ofunwmpacted waste arrives.theymust charge the higher cubicyard ‘compacted” rate or whether they can charge by the ton or by tbe cubic yard “uncompacted”rate, which resultsinalower disposal fee.

‘For purpose ofthis opinion, we acceptyour assumption that sludge iscompacted. 5Regardiog the third sentence ofsection 36LOl3(a) ofthe Health and Safety Code, the House Research Organization ’s bii analysisbasicallyrestated the provision insection 361.Ol3(a):

p. 266Robert A. MacLean, M.D. - Page 5 (DM-52)

situation, we must infer the legislature’s intent from the plain meaning ofthe 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 dryweight basis, the greater of25 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 of25 cents per ton or, ifthe waste is delivered in compacted form, 25 cents per cubicyard and, ifthe waste is delivered in uncompacted form, 5 (five) cents per cubicyard.

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 of50 cents per ton or 50cents per cubicyard; ifthe waste isdelivered inuncompacted form, the department is to charge the greater of 50 cents per ton or 10 cents per cubic yard. The third sentence ofsection 361.013(a) ofthe 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 USC

and for solid waste received by an incinerator for a shredding and composting facilityat one-half the fee set for that ofsolidwaste at alandlii. Itwould 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 tothe department bythe Legislature.
House Research Organization, Bii Analysis, S.B. 1519,7lst Leg.,6thC.S.,at 2 (1989).

p. 267Robert 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 inwhich the waste isdelivered.

DAN MORALES Attorney General ofTexas

WJLLPRYOR 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

p. 268