DAN MORALES 

ATTORNEY GENERAL 

@ffice of tiy Bttornep @eneral 

&ate of Q.Lexas 

October 31.1991 

Robert A. MacLean, M.D. 

Acting Commissioner of Health 

Texas Department of Health 

1100 West 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 as the amount equal to the 

greatest of three factors: the weight of 

de waste, the volume of the compacted 

waste, or the volume of the 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) in its entirety reads:- 

(a) Except as provided by Subsection (e), the [Texas 

Department of Health] shall charge a fee on solid waste that is 

disposed of within this state. The fee is the greater of 50 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. 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 solid waste 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 ‘dry might b& the statute requires land6Xl operators to charge 

disposal fees only for tbat part of the sludge found to be. solids; tbc landfdl operator may not charge for 

‘be water present in sludge. 

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Robert 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 of 50 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 

solid waste received for disposal at a landfill.” (Emphasis added.) 

Under section 361.013(a) before the legislature amended it in August of this 

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, 10 cents per cubic yard. In other words, regardless of the form 

of the solid waste, 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 in which the waste was delivered). Both 

of the 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 of the waste, calculated both as 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 of the waste, but the 

department determines the cubic yard amount eifkr as compacted waste or uncompacted waste, depending on the actual nature of the load. Under Interpretation 

Two, the department collects the greater of two possible 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 cubic yard of compacted waste) is that the amended statute directs the 

department to colled thegnlrrcr of the two possible fees. 

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Robert 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 follow Interpretation 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.) (citing Motion 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 is compacted or uncompacted to compute the fee on a volume, or “cubic yard” 

basis. Then he determines which is greater, the fee computed per ton of weight, 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 

solid waste is compacted or uncompacted. 

Moreover, construing the second sentence to require the department to 

charge the greatest of three possible fees is inconsistent with the legislature’s use of 

.the word “greater.” Normally, a word in its 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 

solid waste by choosing between two numbers, not three. 

Indeed, we must construe, the second sentence to provide the department a 

choice between two fees if we ,are to give effect to all the language and every part of 

the statute where it is reasonably possible. Walden v. Royal Globe h. Co., 577 

S.W.2d 296,300 (Tex. Civ. App.-Beaumont 1978, writ ref d n.r.e.); see aho Black v. 

American Bankers Inr. Co., 478 S.W.2d 434, 437 (Tex. 1972). In practice, 

Interpretation One of the second sentence of section 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. 265 
Robert 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 or by the cubic yard “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 of calculating the disposal fee, either by the ton or by the cubic yard. 

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 of the 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 is measured by the 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 of the 71st Legislature. S.B. 43, Acts 1990,71st Leg., 6th C.S., ch. 10, 

art. 2, 0 3, at 53. The legislative history and bill analysis of Senate Bill 43 and its 

unenacted predecessor in the regular session of the 71st Legislature shed no light on 

the legislative intent behind the third sentence of section 361.013(a).5 In such a 

%hat the fee calculated as if tbe~wastc were delivered in compacted form and measured by the 

cubic yard always is the greatest of the three possible fees underlines tbc dilemma lamltidl operators 

face. Tbc correct disposal fee for a load of compaetcd waste is easy to c&olate based on tbc amended 

statute, but landfdl operators are unsure whether, when a load of unwmpacted waste arrives. they must 

charge the higher cubic yard ‘compacted” rate or whether they can charge by the ton or by tbe cubic 

yard “uncompacted” rate, which results in a lower disposal fee. 

‘For purpose of this opinion, we accept your assumption that sludge is compacted. 

5Regardiog the third sentence of section 36LOl3(a) of the Health and Safety Code, the House 

Research Organization’s bii analysis basically restated the provision in section 361.Ol3(a): 

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

situation, we must infer the legislature’s intent from the plain meaning of the 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 dry weight basis, the greater of 25 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 of 25 cents per ton or, if the waste is delivered in compacted form, 25 cents 

per cubic yard and, if the waste is delivered in uncompacted form, 5 (five) cents per 

cubic yard. 

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 of 50 cents per ton or 50 cents per cubic yard; 

if the waste is delivered in uncompacted form, the department is 

to charge the greater of 50 cents per ton or 10 cents per cubic 

yard. The third sentence of section 361.013(a) of the 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 facility at one-half the fee set for that of solid waste at a landlii. It would 

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 to the department by the Legislature. 

House Research Organization, Bii Analysis, S.B. 1519,7lst Leg., 6th C.S., at 2 (1989). 

p. 267 
Robert 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 

in which the waste is delivered. 

DAN MORALES 

Attorney General of Texas 

WJLL PRYOR 

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