Request By:
Bradley E. Dillon, Esquire
Attorney at Law
Air Pollution Control District
of Jefferson County
914 East Broadway
Louisville, Kentucky 40204
Opinion
Opinion By: Robert F. Stephens, Attorney General; BY: David K. Martin, Assistant Attorney General; BY: Dale D. Brodkey, Assistant Attorney General
You have inquired as to how the provisions of KRS 224.450, requiring regulations of a local air pollution control district to be no less stringent than those of the State, would impact upon the Jefferson County Air Pollution Control District's plan to promulgate permit fee regulations for air contaminant sources. At present, the State does not have permit fee regulations of the type you propose for permits to construct or operate air contaminant sources.
We understand the State is in the process of drafting new permit fee regulations.
The underlying problem which you are attempting to address is one raised by the Clean Air Act Amendments of 1977, P.L. 95-95, August 7, 1977. Section 108 of that Act revised Section 110 of the Clean Air Act to require that State implementation plans contain provisions requiring:
". . . the owner or operator of each major stationary sourcce to pay to the permitting authority as a condition of any permit required under this Act a fee sufficient to cover:
'(i) the reasonable costs of reviewing and acting upon any application for such a permit, and
'(ii) if the owner or operator receives a permit for such source, whether before or after the date of enactment of this paragraph, the reasonable costs (incurred after such date of enactment) of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action).'"
Congress had four separate purposes in mind in enacting this new provision. These were (1) to provide funds for the new review and approval requirements contained in the u977 Amendments, including prevention of significant deterioration requirements, new source reviews, and visibility protection; (2) to assure that the costs of pollution control programs will be internalized into the costs of polluting businesses, rather than being placed directly on the taxpayer; (3) to prevent pollution shopping among states by industry seeking to avoid permit fees by creating minimum fees for all states; and (4) to create a market incentive for the use of nonpolluting production processes. House Report 95-294, p. 15.
The Clean Air Act requires states to revise their state implementation plans to address this and other provisions of the Clean Air Act Amendments of 1977. It is our understanding that the Department for Natural Resources and Environmental Protection hopes to publish proposed regulatory changes by the end of the year, and formally submit the revised State implementation plan (SIP) to EPA by April 1, 1979. There are serious federal sanctions that could be applied to a state if its SIP revision is disapproved by EPA.
Your question is whether the Air Pollution Control District can adopt a lower fee schedule than the State schedule without violating the stringency provision of K.R.S. 224.450. The question of stringency would have to be evaluated based on the four policy goals Congress and, presumably, the Department are attempting to advance. However, we will first address the statutory framework in which this question arises, which we think eliminates the need to define the stringency test further.
The Jefferson County Air Pollution Control District was organized pursuant to K.R.S. Chapter 77, Acts 1952, Chapter 53. The District carries out functions similar to those carried out by the DNREP for the rest of the state. K.R.S. Chapter 77 contains a specific provision for charging fees relating to permits to construct or operate air contaminant sources. K.R.S. 77.205 states:
"The Air Pollution Control Board may provide by regulation a schedule of fees not exceeding the estimated cost of issuing such permits and inspection pertaining to such issuance to be paid for the issuance of such permits. Every person applying for a permit shall pay the fee required by such schedule."
This section, enacted some 25 years prior to the Clean Air Act amendments of 1977, may not be sufficient to authorize a regulation that would meet the requirements of Section 110 (a) (2) (K) (ii) of the Clean Air Act. This is a question of statutory construction which can only be finally determined by sttutory construction which can only be finally determined by the courts. However, it is our opinion that the Legislature in enacting K.R.S. 77.205 only intended to allow the District to charge a fee covering the initial cost of issuing a permit. The Clean Air Act requires the permitting agency to charge permit fees covering the cost of implementing and enforcing the terms of permits (not including the cost of enforcement actions) as well as the cost of issuance. This disparity in the District's authority cannot be remedied by the more general grant to the District in K.R.S. 77.060 (1) to make such rules and regulations as are necessary to carry out the provisions of Chapter 77. In Am. Jur. 2d, Statutes, § 257, it is said that where there is in the same statute a specific provision and a general one which would incorporate it, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the particular provision. By applying this rule of interpretation, it would seem that permit fees enacted pursuant to K.R.S. Chapter 77 would have to be limited to the criteria enumerated in K.R.S. 77.205. The maxim of expressio unius est exclusion alterius would also dictate that elements not specified in K.R.S. 77.205 could not be included in a permit fee.
Smith v. Wedding, Ky., 303 S.W.2d 322 (1957).
Despite the shortcomings of K.R.S. Chapter 77, there does appear to be a way which the District could enact a permit fee regulation that would meet the requirements of Section 110 (a) (2) (K) of the Clean Air Act. K.R.S. 224.450 (2) provides, in pertinent part:
"The Air Pollution Control District shall adopt no regulation or standard less stringent than a regulation or standard adopted by the department, and shall submit prepared regulations and standards to the department for prior concurrence."
It is a cardinal rule of construction that when two statutes on the same subject matter are inconsistent, the latter statute prevails, as it is in the most recent expression of legislative intent. Sand, Sutherland's Statutes and Statutory Construction, 4th ed., Vol. 2A § 51.02 (1973). Thus, the Legislature, by enacting K.R.S. 224.450 (2), authorized the local Air Pollution Control District to enact regulations as stringent as those of the department, notwithstanding the deficiency in the scope of the District's authority under K.R.S. 77.205. Of course, to take advantage of this authority, the District would have to wait for the Department to adopt its regulations, and then enact its own regulations by following the department's regulation as closely as possible. In our view, the District has no authority to enact more stringent regulations on this subject matter due to the limited scope of K.R.S. 77.205, and must enact regulations at least as stringent as the department's regulations pursuant to K.R.S. 224.450(2). In our opinion, therefore, the district would be on the soundest legal ground if it merely adopted the department's forthcoming permit fee regulation as its own. To adopt a less stringent schedule would jeopardize the grant of concurrent jurisdiction under K.R.S. 224.450.