Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX April 11, 1986
Attorney General
Eonorabla Robert E, Bell Opinion No. JR-473
Supreme Court Buildlng Criminal District Mxornay
P. 0. Box 12548 115 W. Main, Room '205 Re: Application fees for solid
Austin. TX. 7871% 2548 Edna, Texas 7795’1 waste disposal permits
5121475-2501
Telex eio/a74-1387
Telecopier 512/475-0288
Dear Mr. Bell:
You advise us that Jackson County has applied to the Texas
714 Jackson, Suite 700 Departmant of HeaLth for a solid waste permit. The Department of
Da,,as,TX. 752024508
Health has refu6e.d to process Jackson County's application until
2141742-8944
Jackson County pays the application fees set by the Department of
Health. Under the rules in effect at the tine Jackson County
4824 Alberta Ave.,Sulte la0 submitted its application, the required fees were $200 for Part A of
El Paso, TX. 793052793 the application and $12,000 for Part B of the application. See Tex.
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
1985). You state that these fees seem to have no rational relation to
Houston,TX. 770029111 the Department of 'Iealth'sexpenses in processing your application.
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
Lubbock, TX. 794013479
art. 4477-7. In setting a fee schedule for applications for solid
aw747-5238 waste permits, the Department of Health acted pursuant to a legisla-
tive delegation of rule-making power set out in arttcle 4477-7,
section 4(k) (I), V.!P.C.S..which provides:
4309 N. Tenth, Suite B
McAllen,TX. 78501-1685
51216524547 The department shall charge a fee for the
filing with the department and revlw by 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:
An Equal OpportunitYI A. t'hepopulation served;
Affirmative Action Employer B. t'hac volume of waste to be handled;
C. t'hetype 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.
p. 2163
Honorable Robert E. Bell - !?age2 (JM-473)
The legislature has aut.horityto 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,
273 (Tex. Civ. App. - H&ton [lst Dist.] 1978, no writ). The
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 :Lnvestigatedby 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~,artmentof 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 ,011the tables under subparagraph
(A) and subparagr.aph(B) of this paragraph which
are graduatad in ;amanner 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>plicationfee schedule.
Type of Facilzsy Application Fee
I $ 200
II $ 100
III 8 50
IV $ 100
V $ 100
VI $ 100
VII $ 100
VIII N/A
Ix $ 100
p. 2164
Eouorable Robert E. Bell - Page 3 LJM-473)
(B) Part B r,ite development plan application
fee schedule.
P.R n/sit*
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In lcbdol*
I TYPa I ?Oo..l?OD.I &Dliutioo Pe.bud 00 "..L.
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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:annotbe 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
p. 2165
Ronorablc Robert E. Bell - P.agc4 (JM-473)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2166