Request By:
Mr. Phillip A. Thompson
President
Kentucky Chamber of Commerce
P.O. Box 817
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: David K. Martin, Acting Director
You have requested an Opinion of the Attorney General concerning the adoption of emergency regulations for hazardous waste management, 401 KAR 2:100 through 2:160. These regulations were filed and became effective on October 17, 1979, pursuant to an executive order of the Governor. 6 Admin. Reg. 247, et seq., December 1, 1979. Your question is whether emergency regulations implementing provisions of KRS Chapter 224 can be lawfully adopted pursuant to KRS 13.085(2) if a recommendation of the Environmental Quality Commission for or against adoption of such regulations has not been given to the Department For Natural Resources and Environmental Protection. The answer to this question is yes.
DISCUSSION
The General Assembly in 1972 completely revised the procedure for the adoption of administrative regulations. KRS 13.085(1) requires that a proposed regulation be published in the Administrative Register, that a public hearing be held if requested, that the regulation be reviewed by the Administrative Regulation Review Subcommittee and, if necessary, the appropriate standing or interim committee. KRS 13.085(2), however, waives these requirements
"when the administrative body finds that an emergency exists, and the governor issues an executive order that the regulation become effective immediately upon being filed in the office of the legislative research commission."
Therefore, it can be seen that while in the ordinary case the head of an administrative agency has the final authority to adopt a regulation, even over the objections of an interim or standing committee, the governor has the final authority to adopt emergency regulations by executive order. Such regulations may only be effective for 120 days.
The General Assembly in 1972 also overhauled Kentucky's environmental laws. In its regular session, the General Assembly voted to create a new Department of Environmental Protection, but due to technical errors the bill did not become law. The General Assembly met in extraordinary session in June of 1972 and enacted the legislation creating a Department of Environmental Protection. Acts, Chapter Three, First Extraordinary Session, 1972. Among other things, this legislation established an Environmental Quality Commission, which has the power, duty and authority under KRS 224.045(6) to:
(6) Recommend adoption or rejection after public hearing by a majority of its membership present and voting any proposal by the department to adopt, modify or revoke:
(a) Any comprehensive environment quality plan, program or policy proposed for adoption as a state plan or policy pertaining to an environmental management activity; or
(b) Any rule or regulation pertaining to the prevention, abatement and control of existing or threatened air or water pollution, disposal of waste, control of noise, or the use of air, land, or water resources, or strip mining and reclamation.
Similarly, the Department's authorization to enact regulations in KRS 224.033(17) requires that the Commission's recommendation be obtained.
The Environmental Quality Commission (Commission) is required to meet every three months, and in practice schedules monthly meetings except in December. However, special meetings may be called at any time by the chairperson or by three of the Commissioners upon delivery of five days' advance written notice to all members of the Commission. KRS 224.041(9).
The seven members of the Commission are appointed by the Governor and are usually selected to represent the diverse regions and interests in the Commonwealth.
When the Department proposes to the Commission a matter for its recommendation of adoption or rejection, the Commission must tender to the Department its recommendation of adoption or rejection in writing. The Department may adopt a matter over the Commission's recommendation of rejection, but the Secretary is required to file with the Commission a statement of the reasons for doing so. KRS 224.055.
KRS 13.080(5) states that compliance with the provisions of KRS Chapter 13 does not dispense with the requirements of any other law necessary to make a regulation effective. The issue you raise is whether the KRS 224.045(6) recommendation is such a requirement that must be complied with to make an emergency regulation implementing provisions of KRS Chapter 224 effective. As we indicated above, KRS 224.045(6) does not apply to emergency regulations because emergency regulations are made effective by action of the Governor's Office, not action of the Department. Such regulations do not constitute a proposal that the department adopt a regulation, and therefore emergency regulations do not fall within the scope of KRS 224.045(6).
This is the apparent policy of the Department and the Commission. Several emergency regulations have been enacted implementing requirements of KRS Chanters 224 and 350, and to our knowledge the Department has never requested the formal recommendation of the Commission, and the Commission has never requested an opportunity to give its formal recommendation. The policy statement of the Commission on its KRS 224.045(5) and (6) recommendations only addresses the timing of its recommendation in rulemaking under KRS 13.085(1), which applies to all nonemergency regulations. The interpretation of a statute given by agencies with responsibility for implementing the statute should be given some deference when there is more than one possible interpretation.
Train v. N.R.D.C., 421 U.S. 60 (1975);
Udall v. Tallman, 380 U.S. 1 (1965). Moreover, the conclusion that the Commission hearing and recommendation procedure does not apply to emergency regulations is consistent with the purpose of the General Assembly in authorizing emergency regulations. KRS Chapter 13 sets out fairly elaborate procedural requirements for non-emergency regulations that have made rulemaking a lengthy process in Kentucky. As a safety valve, the General Assembly allowed the Governor, upon the finding of an agency that an emergency exists, to enact emergency regulations swiftly with no public participation or notice requirements at all. If the Commission's recommendation were required to promulgate an emergency regulation, at least an additional week would be added to the process. We do not see any legislative intent to restrict the speed with which emergency regulations can be enacted concerning environmental matters. In fact, this is one area of governmental regulation in which it is conceivable that speedy action might be necessary.
Since we have concluded that the recommendation of the Commission is not required in order to promulgate emergency regulations, this opinion does not address the legal consequences of the failure to obtain the Commission's recommendation where it is required. Moreover, there is no legal reason why the Department cannot request the opinion of the Commission on emergency regulations being drafted for the Governor's consideration when it is feasible for the Department to do so.