Request By:
Ed W. Hancock
Deputy Secretary for Legal Affairs
Department for Transportation
Commonwealth of Kentucky
Frankfort, Kentucky 40622
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of August 2, 1979 in which you ask whether either the Kentucky Department of Transportation (DOT) or the Kentucky Department for Natural Resources and Environmental Protection (DNREP) or both have the "legal authority to issue regulations which would regulate the transportation of hazardous materials in the Commonwealth of Kentucky".
The authority for an administrative agency to promulgate regulations comes from the powers delegated to it by statute. KRS § 13.082(1). An agency's power to adopt regulations is limited to implementing the policies delegated to it by statute. Auxier v. Commonwealth, Board of Embalmers and Funeral Directors, Ky. App., 553 S.W.2d 286 (1977); Kentucky Association of Chiropractors, Inc. v. Jefferson County Medical Society, Ky., 549 S.W.2d 817 (1977).
The issue here is whether DOT or DNREP has the authority to promulgate regulations concerning the transportation of hazardous materials in Kentucky given their stated statutory powers. It is a rule of administrative law that "delegated authority cannot go beyond what is reasonable in accomplishing the purposes of the Act for the administration of which the agency was given the delegation". Kentucky State Board of Business Schools v. Electronic Computer Programming Institute, Inc., Ky., 453 S.W.2d 534 (1970) at 536; Courtney v. Island Creek Coal Company, 474 F.2d 468 (6th Cir. 1973); Department for Natural Resources and Environmental Protection v. Stearns Coal and Lumber Company, Ky., 536 S.W.2d 471 (1978). See Am. Jur.2d, Adm. Law § 70; OAG 79-83.
DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION
The Department has statutory authority to regulate hazardous waste. Hazardous waste is defined in KRS § 224.005(24)(a), and it is not necessarily the same thing as hazardous material.
"Hazardous waste" means any waste substance or combination of substances, in any form which because of its quantity, concentration or physical, chemical or infectious characteristics may create a threat to public health or to animal, plant, and aguatic life forms, and includes but is not limited to substances which are toxic, flammable, corrosive, radioactive, irritants, strong sensitizers, or which generate pressure through decomposition, heat or other means; nothing in this chapter shall be construed to apply to any activity or substance which is subject to the Federal Atomic Energy Act of 1954 or to wastes produced by livestock.
Transportation is defined in KRS § 224.005(22) as "any movement of hazardous waste by any mode, and any loading, unloading, or storage incidental thereto".
There are several sections of KRS chapter 224 which specifically apply to hazardous wastes. KRS § 224.033 states the powers and duties of DNREP. Included in these powers is that of "Establish[ing] a comprehensive waste management plan in order to ensure that wastes are properly collected, stored, processed, transported, disposed, and recycled". KRS § 224.033(24) (emphasis added). Under KRS § 224.005(24) wastes include both hazardous and solid waste. This section makes it clear that the legislature has given the Department authority to deal with the transportation of hazardous waste.
Other sections which directly relate to hazardous waste include KRS § 224.037, 224.250-224.255, 224.855-224.891, and 224.996. KRS § 224.037 designates DNREP as the "management agency for solid wates and hazardous waste for purposes of the Resource Conservation and Recovery Act (Public Law 94-580, approved October 21, 1976)." KRS § 224.250-224.255 pertain to waste disposal; KRS § 224.255(1) states that "No person shall transport to or dispose of hazardous waste at any site or facility other than a site or facility for which a permit for hazardous waste disposal has been issued by the department. . . ." Section 224.855 relates to permits for waste disposal sites or facilities.
KRS § 224.890 deals with regulations and permits regarding hazardous wastes.
(1) The department shall promulgate regulations which establish reporting procedures and standards for the generation, storage, treatment, recycling and disposal of hazardous wastes.
(2) The department shall promulgate regulations identifying the characteristics of hazardous wastes and listing hazardous wastes.
(3) The department shall promulgate regulations establishing requirements for record-keeping concerning the origin, composition, quantity, handling, and disposition of hazardous wastes.
(4) No person shall engage in the generation, storage, treatment, recycling or disposal of hazardous wastes without first obtaining a permit from the department. Every application for a permit to generate hazardous waste shall be accompanied by a plan which shall include:
(a) A statement of the kind and chemical composition of the waste to be generated;
(b) The plan for disposal including the location of the disposal site and the method of disposal utilized at the site;
(c) The proposed method for transporting the waste for purposes of disposal including the kind of transportation to be utilized. If the name and address of the transporter is known the same shall be included, or if not known, then the plan for advising the department of such information in advance of such transportation.
(5) A person desiring a permit shall file an application on forms supplied by the department which shall contain such information the department deems necessary and provide evidence that the hazardous wastes shall be treated, stored, or disposed of at an approved site or facility in the manner prescribed by the department.
(6) In conjunction with the application for permits under subsection (4), the applicant shall post a bond with the department in an amount determined by the department to be sufficient to insure compliance.
(7) Hazardous waste may only be disposed of at an approved site or facility.
KRS § 224.891 and 224.996(5) deal with injunctions and penalties for violation of 224.890.
Section 224.890 does not specifically state that the Department shall promulgate regulations dealing with transportation of hazardous wastes. However, it does establish a system of permits by which the Department is to ensure proper handling of hazardous wastes from generation to disposal. In order to obtain a permit to generate hazardous waste an applicant must provide a plan to the Department which includes the proposed method for transporting the waste. KRS § 224.890(4)(c). The transportation of hazardous waste is an integral aspect of the handling of such waste at all stages.
The Kentucky General Assembly amended the hazardous waste provisions in KRS chapter 224, with ambiguous results. For example, as KRS § 224.890(2) was previously written, permits were required of persons "engaged in collecting, hauling, and the disposal of hazardous wastes . . ." The 1978 amendment to this section eliminated the "collecting, hauling, and disposal" language and substituted "generation, storage, treatment, recycling or disposal of hazardous wastes". KRS § 224.890(4). The need for permits by haulers was eliminated, and "transporters" was not substituted; however, it isn't clear whether haulers would be equivalent to transporters.
In addition, KRS § 224.900 was repealed in 1978. It had stated, "The secretary may require licensing of a hauler of any substance which poses a threat or hazard to the environment and public health" .
Although these changes might suggest that the General Assembly meant to remove the Department's authority over regulation of transporters of hazardous wastes, the Attorney General's office thinks otherwise. First, Section § 224.900 dealt with licensing of haulers of "any substance which poses a threat or hazard to the environment and public health" . (emphasis added) This language goes beyond the other sections in KRS chapter 224 which give the Department authority over hazardous wastes. Possibly the legislature thought that KRS § 224.900 went too far, that the Department's powers should only extend to hazardous waste, and possibly it thought that more general powers over licensing transporters of hazardous substances were covered in other statutes.
In addition, even if one focuses on the "licensing of a hauler" language in KRS § 224.900, the repeal of this section in 1978 does not necessarily mean that the Department was no longer to regulate the transportation of hazardous wastes. On the contrary, in 1978, the General Assembly added paragraph 24 to KRS § 224.033 supra; this gave the Department authority to establish a comprehensive waste management plan which includes transportation.
In conclusion, we are of the opinion that DNREP, pursuant to language in KRS chapter 224, has the statutory authority to promulgate regulations regarding the transportation of hazardous wastes in Kentucky. The actions of the 1978 General Assembly, although ambivalent in this regard, do not detract from this opinion. However it should be noted that the Department's authority is over hazardouswaste, which is not necessarily equivalent to hazardous materials.
DEPARTMENT OF TRANSPORTATION
The statutory authority for DOT regulation of transportation of hazardous materials is less clear. There are no statutes specifically covering the transportation of hazardous materials or hazardous waste. However, one aspect of Kentucky policy as to transportation is "to promote safe, adequate, economical and efficient service . . ." KRS § 281.590.
The administrative functions and powers of the Bureau of Vehicle Regulation in DOT are stated in KRS § 281.600.
The bureau of vehicle regulation shall exercise all administrative functions of the state in relation to motor transportation as defined in this chapter, . . . It shall have the right to regulate motor carriers as provided in this chapter, and to that end may establish reasonable requirements with respect to continuous and adequate service of transportation, systems of accounts, records and reports, preservation of records and safety of operation and equipment. . . . [It] shall have the authority to promulgate regulations regarding safety requirements for motor vehicles and the method of operation, and any motor vehicle operating contrary to such safety rules and regulations shall be in violation of this section.
Motor carriers and motor vehicles are defined in KRS § 281.011 (1) and (2).
The language in KRS § 281.600 concerning safety is broad. Although there is no specific statutory language regarding transportation of hazardous materials, it is the opinion of the Attorney General's office that DOT does have the authority to regulate such transportation in Kentucky, subject to requirements of federal law, such as the Hazardous Materials Transport Act, 49 U.S.C. § 1801, et seq.
This authority derives from the Department's stated powers to deal with "safety of operation and equipment" and "safety requirements for motor vehicles and the method of operation". KRS § 281.600. The Department is to see that transportation on Kentucky roads is safe, as well as economic and efficient. One aspect of such a focus on safety would be that hazardous materials are transported in the safest ways possible.
It is a matter of statutory construction in Kentucky law that "all statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, . . ." KRS § 446.080(1).
Furthermore, it is a matter of administrative law that the General Assembly can not be expected to include all the detailed aspects of an agency's functions and powers in the statutes which create such an agency. The legislature simply does not have the time or expertise to do so. Rather, the agency itself has the responsibility of establishing rules and procedures which will enable it to carry out the powers delegated to it by statute.
The highest court in Kentucky has recognized this situation, for example, in a case dealing with education of "exceptional children". The Court stated:
Let us, then, examine this law in terms of the practical needs of effective government, and in terms of safeguards against abuse and injustice. The legislature wants to encourage and lend a modicum of support to the special education of a certain class of people. It does not wish, in so doing, to waste the taxpayers' money. The members of the legislature are allowed to meet in regular session only 60 days every two years. They have neither the time, facilities, nor qualifications to do more than indicate the class and fix the amount to be spent. At the state's disposal, however, is its board of education, an agency fully and better qualified than the legislature to establish and carry out whatever further policies and procedures may be necessary or desirable. This body also is one of the most responsible and long-established agencies of the state government. Butler v. United Cerebral Palsy of Northern Kentucky, Ky., 352 S.W.2d 203 (1961) at 208.
Any rules promulgated by an administrative agency must be "(a) reasonable, (b) issued pursuant to proper procedure, and (c) within the granted power". Kentucky State Board of Business Schools v. Electronic Computer Programming Institute, Inc., supra, at 536.
Even though "safety requirements" aren't specifically defined in KRS § 281.600, DOT would have the expertise and time to determine what is to be included. Surely regulation of the transportation of hazardous materials in Kentucky is to be included.
The Attorney General's office does not know exactly what kinds of regulations DOT would have in mind. There could be regulations ensuring that vehicles carrying hazardous materials be properly equipped to do so or requiring that a manifest system be established, so that there would be a record of what the hazardous material being transported is, where it came from, where it is going, and by what route.
Such a manifest system for hazardous materials would be an extension of current DOT regulations which provide for shipping documents, including manifests, to be carried on common carrier vehicles and available for inspection. 601 KAR 2:010 § 9. "Manifest" is defined at 601 KAR 1:035 § 7.
"Hazardous material" is not defined in the statutes or regulations. A definition could be incorporated by reference to the federal Hazardous Materials Transportation Act, 49 U.S.C. § 1802(2). DOT has already indicated that it is willing to adopt federal law relative to hazardous materials. For example, 601 KAR 1:005 § 1(1) states, "Motor Carrier Safety Regulations as of October 1, 1974, and future amendments and revisions thereto, adopted and issued by the United States Department of Transportation relating to the following subjects: . . . Part 397, Transportation of Hazardous Materials; Driving and Parking Rules are hereby adopted and filed herein by reference, insofar as they do not conflict with the laws of Kentucky, . . ."
Conclusion
It is our opinion that DNREP has the statutory authority to regulate the transportation of hazardous waste in Kentucky and that DOT has the authority to regulate the transportation of hazardous materials. It must be kept clear that hazardous wastes and hazardous materials are not necessarily the same thing.
"Hazardous materials" is not explicitly defined in either the statutes or regulations. We recommend that DOT set out a definition or state explicitly that it is incorporating a definition from another source such as a federal law.
There will be some overlap in the extent of regulatory authority of the two departments where the definitions of hazardous wastes and hazardous materials overlap. Neither department has as of yet promulgated regulations in this area.
The specific aspects each department seeks to regulate and the techniques each department proposes to utilize are issues DNREP and DOT must work out for themselves. It is up to the two agencies to decide the extent to which they plan on working together on promulgating regulations which are not redundant.