Request By:
Dr. George H. Zenger
Post Office Box 17099
Louisville, Kentucky 40217
Opinion
Opinion By: Steven L. Beshear, Attorney General; Joseph R. Johnson, Assistant Attorney General
In your letter dated December 1, 1980, you stated that you are a radiotherapist who uses his private motor vehicle to transport radium for the treatment of cancer of the womb and cervix. Your question is whether you are a "carrier" within the meaning of House Bill 863 which is the Hazardous Materials Act passed by the 1980 General Assembly. The Department of Transportation has taken the position that you are a "carrier" and therefore must obtain a permit.
KRS 174.405(1) defines a "carrier" as a "person engaged in the commercial transportation of passengers or property. . . ." Obviously, this definition would not include a physician carrying radium for the treatment of his patients since he is not engaged in transporting passengers or property for a profit. The transportation of the radioactive material is merely incidental to his profession of treating sick patients. Of course, the definition does include a private carrier transporting such material for a profit.
On the other hand, turning to KRS 174.415(1), we find a provision that "no person" may haul or transport radioactive materials "into, out of, within, or through the Commonwealth . . . unless such person holds a valid permit or certificate issued by the department (of transportation) or its designated agent." This language would seem to indicate that any one transporting radioactive materials for any purpose whatsoever is required to first obtain a permit since KRS 446.010(26) defines the term "person" as including individuals.
However, when KRS Chapter 174 is read in its entirety, it is apparent that the permit requirements only pertain to commercial carriers as defined in KRS 174.405(1).
For example, KRS 174.415(3) and (4) states as follows:
(3) Carriers of radioactive materials and intrastate carriers of other hazardous materials required to obtain permits or certificates pursuant to KRS Chapter 281 shall be required to provide annually the following information in a form designated by the department:
(a) Name of carrier, and the individual associated with the carrier who can be immediately contacted in the event of emergencies;
(b) A description of emergency procedures which the carrier will follow in the event of an accident.
(4) All carriers of radioactive materials and intrastate carriers of other hazardous materials not subject to permits or certificates pursuant to KRS Chapter 281 shall be required to:
(a) Comply with the regulations adopted pursuant to Section 3 of this Act;
(b) Provide documentation of compliance in a form or manner prescribed by the department;
(c) Provide the additional information annually required by subsection (3) of this section; and
(d) Obtain a general permit, to be renewed annually, from the department upon satisfactory documentation of compliance with this section.
KRS 174.420(1) provides that any person transporting hazardous materials must carry the shipping papers required by federal regulations and KRS 174.420(3) provides that such person must carry a copy of a manifest in a form approved by the Department for Natural Resources and Environmental Protection. KRS Chapter 281 referred to above provides for the licensure of motor carriers. These provisions all have applicability to commercial carriers -- not private passenger automobiles.
One rule of statutory construction is that a statute must be considered as a whole in attempting to establish its purpose.