Case Information
*1 The Attorney General of Texas April 11, 1986
JIM MAlTOX
Attorney General
Eonorabla Robert E, Bell Opinion No. JR-473 Criminal District Mxornay Supreme Court Buildlng 115 W. Main, Room '205 Re: Application fees for solid P. 0. Box 12548 Edna, Texas 7795’1 waste disposal permits Austin. TX. 7871% 2548 5121475-2501 Telex eio/a74-1387 Dear Mr. Bell: Telecopier 512/475-0288
You advise us that Jackson County has applied to the Texas 714 Jackson, Suite 700 Da,,as,TX. 2141742-8944 [752024508] Departmant of HeaLth for a solid waste permit. The Department of Health has refu6e.d to process Jackson County's application until Jackson County pays the application fees set by the Department of
Health. Under the rules in effect at the tine Jackson County submitted its application, the required fees were $200 for Part A of 4824 Alberta Ave.,Sulte la0 the application and $12,000 for Part B of the application. See Tex. El Paso, TX. 793052793
Dept. of Health, 10 Tax. Reg. 3286 (1985) (codified at 2E.A.C. 5325.63) (fees effective from September 1, 1985, through December 30, 1Wl Texas. Suite 700 Houston,TX. the Department of 'Iealth's expenses in processing your application. 1985). You state that these fees seem to have no rational relation to 713/22X&86 The legislature has granted the Department of Health authority over issuance of solid waste permits to certain entities. V.T.C.S. SW Broadway, Suite 312 art. 4477-7. In setting a fee schedule for applications for solid Lubbock, TX. 794013479 waste permits, the Department of Health acted pursuant to a legisla- aw747-5238 tive delegation of rule-making power set out in arttcle 4477-7, 4309 N. Tenth, Suite B McAllen,TX. 78501-1685 section 4(k) (I), V.!P.C.S.. which provides: filing with the department and revlw by the The department shall charge a fee for the
departmeat. of a permit application under this 200 Main Plaza, Suite 400 section. A fee schedule shall be adopted by rule San Antonio, TX. 782052797 that shall be reasonably related to one or more of 512l2254191 the follmring factors: A. t'he population served; An Equal OpportunitYI B. t'hac volume of waste to be handled; Affirmative Action Employer
C. t'he type and size of the facility; or D. the cost of the review of the permit application.
The legislature also provided that application fees as well as annual permit fees should be set in an amount that would generate sufficient revenue to meet the expenses of administering section 4 of article 4477-7. which provides for the issuance and overseeing of solid waste permits.
Honorable Robert E. Bell - !?age 2 (JM-473)
The legislature has aut.hority to delegate to au agency power to carry out a legislative purpose. State ex rel. Grimes County Tax- payers Association V. Texas Municipal Power Agency, 565 S.W.2d 258, [lst Dist.] 1978, no writ). The 273 (Tex. Civ. App. - H&ton legislature must e&ablish reasonable standards to guide the entity, but such standards may be broad where conditions must be considered that cannot be conveniently :Lnvestigated by the legislature. Id. -
In this instance the Lagislature set out specific guidelines for the Departmant of Bealth ta use in setting fees, and it directed that total fees collected should cover the department's expenses in the permit process. You do not question the propriety of the legislative delegation. gather, you question whether the Department of Health complied with the requiremsnts of article 4477-7, section 4(k)(l).
The fees that the De~,artment of Health set pursuant to article 4477-7 purport to be bac.ed on the standards established by the legislature:
5325.63. Permit Application Fees.
(a) Types of applications.
(1) New applLcations. With sach application for a permit to construct or operate a municipal solid waste procsssing or disposal facility. the applicant shall mbmit a nonrefundable application fee to the departmmt. The fee may be submitted in two parts, with the first part due with sub- mission of Part A of the application and the second part due 3ctth submission of Part B or site developmant plar. of the application. The fee shall be based ,011 the tables under subparagraph (A) and subparagr.aph (B) of this paragraph which are graduatad in ;a manner to consider me or more of the following factors: tha population served; the volume of wmte to be handled; the type and size of the faci:.ity; or the cost of the review of the permit application.
(a) Part A al>plication fee schedule. Type of Facilzsy Application Fee $ 200 II $ 100 III 8 IV $ 100 V $ 100 $ 100 VI $ 100 VII VIII N/A $ Ix *3 Eouorable Robert E. Bell - Page 3 LJM-473)
(B) Part B r,ite development plan application fee schedule.
P.R n/sit* rlw.,,-t nr dpp1iurioa In lcbdol* I TYPa I ?Oo..l?OD. I Pe. bud 00 "..L. &Dliutioo ;i .
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We cannot say. as a matter of law, that these fees are unreasonable. Whether the7 actually bear a reasonable relationship to the cost of processing applications and issuing permits is a question of fact. We are not able to render opinions on questions of fact.
SUMMARY Whether the fees promulgated in 25 T.A.C., section 325.63 (effective September 1, 1985, through Decambex 30. 1985) are proper is a fact question which I:annot be reached in the opinion process. .
Attorney General of Texas JACK HIGRTOWEZ
First Assistant Attorney General
MARY KELLER
Executive Assistant Attoruey General
ROBERT GRAY
Special Assistant Attorney General
Ronorablc Robert E. Bell - P.agc 4 (JM-473)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General