Request By:
Mr. Mark Jasper
Rockcastle Deputy County Judge Executive
P.O. Box 755
Mt. Vernon, Kentucky 40456
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 42.450 establishes a "Local Government Economic Assistance Fund." It is composed, inter alia, of one-half (1/2) of the state minerals sales tax (exclusive of coal) and one-half (1/2) of the state coal severance tax collected annually.
Under KRS 42.455(2), thirty percent (30%) of all moneys in the fund must be spent on the coal haul road system as described in subsection (7) of this statute. Subsection (7) reads:
(7) On or before August 15, 1980, and each year thereafter, the transportation cabinet shall publish and furnish to the finance and administration cabinet a directory, including supporting maps and other documents, designating the official state coal road system in coal impact and coal producing counties which shall include all public highways, roads, and streets over which quantities of coal, sufficient to significantly affect the condition and state of repair of such highways, roads and streets, have been transported in the immediately preceding fiscal year. The cabinet shall further publish the total county mileage of the official state coal road system and the total ton/ miles within each coal impact and coal producing county for said preceding fiscal year.
The remaining seventy percent (70%) of all moneys in the fund shall be spent on priority categories limited to certain categories enumerated as KRS 42.455 (2)(a) through (j).
The grants to local governments of all moneys in the fund are extended to coal producing counties and coal impacted counties (counties containing roads over which coal is hauled) . See KRS 42.470 for allocation scheme.
This money is distributed to each qualifying county by the Department of Finance according to a formula which requires knowledge of the coal tonnage hauled over public roads within each affected county. Subsection (8) of KRS 42.455 requires every person shipping or transporting coal over any public road to file quarterly reports with the Transportation Cabinet for the purpose of identifying roads in the coal haul road system and quantities of coal transported thereon. That information is turned over to the Department of Finance.
Since KRS 42.455(8) contains no penalty for failure to file the reports, you write that approximately forty percent (40%) of all coal haulers or processors are failing to file reports. The result is that some counties are not receiving their fair share of the Local Government Economic Assistance Funds.
Your question reads:
"Can a Fiscal Court pass an ordinance (containing a penalty for failure to comply) requiring all coal transporters in their respective county to file these quarterly TD 59-100 reports with the Department of Transportation? If not, could a Fiscal Court pass an ordinance requiring coal transporters to file a quarterly report, similar to the TD 59-100, with the Fiscal Court?"
The coal-haul highway system reporting requirements are dealt with at length in 603 KAR 5:115. Section 2 of that regulation reads:
Section 2. Reporting Requirements. (1) On or before the twentieth day of the month following the interval in which any coal is shipped over public highways, roads, or streets by or on behalf of any owner from a mine mouth or pit to a processing plant, tipple, loading dock, or customer, or from any of the foregoing locations to another of such locations, the owner shall file a report on Form TD 59-100 (Coal Severor and/or Route and Tonnage Report) or other form designated by the Department. This report is to be filed with the Kentucky Department of Transportation, Bureau of Highways, Division of Project Development and contain information required by the Department relative to the ton miles of coal transported on the public highways, streets, and roads of each county in or through which coal was transported.
(2) The owner is responsible for obtaining and reporting the origin, the destination, the tons and approximate highway mileage on each route or road for all coal transported on public highways or streets when the coal is sold by a person or organization, such as a broker, or when the coal is transported by another individual or firm engaged in trucking coal for hire.
(3) An owner who is not engaged in the transportation of coal in any way must notify the Department of the precise nature of his operations in order that his address may be removed either temporarily or permanently from the mailing list of those firms to which forms are periodically sent. Likewise, owners who ship no coal during an interval shall inform the Department of that fact on or before the due date for that interval's report. (8 Ky.R. 952; eff. 4-7-82.)
It is our opinion that a fiscal court in a county affected by the L.G.E.A. program has no authority to enact an ordinance requiring all coal transporters to file the form TD 59-100 (Coal Severor and/or Route and Tonnage Report) with the Department of Transportation, or an ordinance requiring similar reports to be filed with the fiscal court. The question of a county government penalty for failure to file such reports under this analysis would be academic.
The Supreme Court of Kentucky, in Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), assumed a hard line in holding that while the General Assembly may grant governmental powers to counties, "it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast." We are not aware of any statute expressly granting counties the authority to enact ordinances in this kind of situation. Neither is there any necessary implication of such authority.
Moreover, the nature of the state legislation is such that it can be seen clearly as a state preempted financial program of assistance to local governments. The mineral and coal severance taxes are state taxes. The General Assembly lawfully established, as a state program, the county aid program, to be funded by those taxes. See OAG 75-76, copy enclosed.