Request By:
Mr. James P. Dady
The Kentucky Post Bureau
Press Row, Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David K. Martin, Assistant Attorney General; By: Dale D. Brodkey, Legal Intern
In your letter to the Attorney General, you have requested an opinion with respect to state enforcement authority under the Federal Clean Air Act.
In essence you asked two questions:
(1) Can the Kentucky Department For Natural Resources and Environmental Protection enforce the standards of the Federal Clean Air Act without further legislation from the General Assembly?
(2) More specifically, can the Department For Natural Resources and Environmental Protection require mandatory auto emissions testing in "non-compliance areas?"
(1) - The authority to act with respect to air pollution of the Department For Natural Resources and Environmental Protection comes from the powers delegated to the Department by statute. As a state administrative body, its power to adopt regulations is to be "uniform and . . . confined to the direct implementation of the functions and duties assigned to (it) . . . by the general assembly, or by executive order." KRS 13.082(1).
The courts in Kentucky have held that the Legislature may delegate discretionary power to the state administrative agencies,
Ky. State Board of Business Schools vs. Electronic Computer Programming Inst., Inc., 453 S.W.2d. 534 (1970); that the agency's power to adopt regulations is limited to implementing the policies delegated to it by statute,
Auxier vs. Commonwealth, Board of Embalmers and Funeral Directors, 553 S.W.2d. 286 (1977, Court of Appeals),
Ky. Association of Chiropractors, Inc., vs. Jefferson County Medical Society, 549 S.W.2d. 817 (1977), and
Portwood vs. Falls City Brewing Co., 318 S.W.2d. 535 (1958); and that the main safeguard against an agency's abuse of its delegated authority is review in the courts,
Butler vs. United Cerebral Palsy of Northern Ky., Inc., 352 S.W.2d. 203 (1961), and Kentucky State Board of Business Schools, supra. In the cases, rather broad delegations of legislative powers have been upheld.
The Kentucky Supreme Court, in Miller vs. Covington Development Authority, 539 S.W.2d. 1 (1976), spelled out factors considered in determining whether delegation of legislative authority has been authorized in a particular case. These include: (a) "standards or safeguards that so confine the administrative body's powers . . . that they do not exceed the scope of mere details in the execution"; (b) "a long-established administrative agency . . . with a track record of experience and expertise in a well-recognized field"; (c) delegated powers which are "confined to matters so involved or so beyond the technical competence of a legislative body that it would be unrealistic not to vest in an administrative agency. " Id., at 4.
Among the powers and duties delegated to the Department For Natural Resources and Environmental Protection is that to "(p)rovide for the prevention, abatement, and control of all water, land, and air pollution including but not limited to that related to particulates, pesticides, gases, dust, vapors, noise, radiation, odor, nutrients, heated liquid, or other contaminants. KRS 224.033(5). The Department also has the power and duty to "adopt, modify or repeal with the recommendation of the (environmental quality) commission any standard, rule, regulation or plan" specified in KRS 224.045(5),(6).
In addition, the Department's authority is covered in the section on Air Pollution Control, KRS 224.320 - 224.450. KRS 224.330 states that the discharge into the air of air contaminants "in contravention of the emission standards or the ambient air standards adopted by the department, or in contravention of any of the rules, regulations, or orders of the department, . . . ." is prohibited. KRS 224.340 articulates the considerations which the Department is to recognize in fixing these standards. "Air contaminant, " "air contaminant source," and "air pollution" are defined in KRS 224.005(1),(2),(3).
Finally, the Department is designated as the "air pollution agency for all purposes of the Federal Air Quality Act . . . as amended . . . The department may take all actions necessary or appropriate to secure to this state and all cities, counties, districts, and authorities within this state the benefits of such federal acts." KRS 224.037.
Under the Federal Clean Air Act, 42 U.S.C. § 7401, et seq, the Federal government, in order to prevent and control air pollution, is to work with state and local governments. The states are to adopt primary and secondary ambient air quality standards for each of their air quality regions and submit these to the Administrator of the Environmental Protection Agency for approval. 42 U.S.C. § 7410.
The present state laws give the Department the power to promulgate rules and regulations dealing with air pollution, including the establishment of standards. They also give the Department the authority to act with respect to the Federal law. When one construes the state and Federal laws together, the state standards can be considered consistent with those required under the Federal law.
Thus, it can be said that the Department has the authority from present Kentucky law to enforce standards of the Clean Air Act without further legislation from the General Assembly. In addition, even if one is unwilling to construe the state laws as clearly articulating this authority, one can, by applying Kentucky case law, still interpret the state statutes as implicitly delegating such authority to the Department from the various powers which the statutes have given the Department.
(2) - The Federal Clean Air Act provides for the inspection and testing of motor vehicle emissions. It states that the Administrator of the Environmental Protection Agency shall approve state implementation plans for primary ambient air quality standards if such plan, among other things, "provides, to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards. " 42 U.S.C. § 7410(a)(2)(G). Under this section, such inspections are not mandatory.
There is, however, one situation in which such inspection programs are required. This exception pertains to state implementation plans where the state demonstrates that attainment of national primary ambient air quality standards for photochemical oxidants and/or carbon monoxide is not possible by December 31, 1982, 42 U.S.C. § 7502(a)(2). In such a situation, where the state would have until December 31, 1987, to comply, it must "establish a specific schedule for implementation of a vehicle emission control inspection and maintenance program." 42 U.S.C. § 7502(b)(11)(B).
The question of whether the Department For Natural Resources and Environmental Protection could require mandatory automobile emissions tests comes under the issue of the extent to which authority to prevent and control air pollution is delegated to the Department. "Air contaminant sources," which comes under the purview of the state statutes, include "automobiles, trucks, tractors, buses and other motor vehicles. " KRS 224.005(2). Thus, applying the results of Kentucky case law on the delegation of legislative authority, it appears that the power to deal with such sources of air pollution by regulation has been delegated to the Department. The Department would be required to establish an emissions testing program if it could demonstrate that it comes under 42 U.S.C. § 7502(a)(2); otherwise, such a program is not mandatory. It is assumed here that the "non-equivalent areas" referred to in your letter are equivalent to the non-attainment areas covered in 7502(a)(2).
The General Assembly, in 1978, considered but did not pass a bill which would have required mandatory automobile emissions testing in counties with populations greater than 80,000. Even though the Department appears to have the authority to institute emissions testing by regulation, it is not necessary that the Department so act unless a non-attainment area under section 7502 is involved. Moreover, it is reasonable to think that the Department might not wish to do so in light of the action by the General Assembly earlier this year.
If this office may be of further assistance to you concerning this matter, feel free to contact us.