OAG 10-010 | KOGC

Request By:
Jane Rice Williams, Chair, Mining Board

Opinion

Opinion By: JACK CONWAY, ATTORNEY GENERAL; Tad Thomas, Assistant Deputy Attorney General

Opinion of the Attorney General

On October 29, 2009, Jane Rice Williams, Chair of the Mining Board, requested an opinion of the Attorney General pursuant to KRS 15.020, asking "what exactly is the authority of the Mining Board with regard to the approval or disapproval of the Department's [of Natural Resources] regulations? Is the Mining Board required to formally approve Department regulation prior to those regulations being filed with the Legislative Research Commission? Does KRS 351.070(13) have any effect on the Mining Board's approval authority?" Pursuant to long-standing policy of this office, written requests were made to Ms. Williams, the Mining Board, and the Department of Natural Resources for their opinions on the matter. The Department of Natural Resources submitted a memorandum responsive to that request.

Discussion

KRS 351.105 gives the Mining Board the power to review and approve all administrative regulations proposed by the Department of Natural Resources that relate to the mining of coal, penalties, or the certification of miners. KRS 351.105(11) provides:

(11) The board shall review and approve all administrative regulations, including administrative regulations required by KRS 351.025 , proposed by the department that relate to the mining of coal, penalties, or the certification of miners before those administrative regulations are promulgated in accordance with KRS Chapter 13A.

KRS 351.010(h) provides that the department referenced in KRS 351.105 is the Department for Natural Resources.

The use of the term "shall" in a statute is "mandatory." 1 Since KRS 351.105(11) reads, "the board shall review and approve all administrative regulations, " the General Assembly intended that the Mining Board must review and approve all administrative regulations proposed by the Department of Natural Resources pertaining to the mining of coal, penalties, or the certification of miners before those regulations can be promulgated.

When a regulation is promulgated by an administrative body, it must be filed with the regulations compiler of the Legislative Research Commission. 2 KRS 13A.120(3) provides that if a statute requires the administrative body to obtain the review or approval of another body prior to filing, the administrative body cannot file the regulation without the approval of the other body. KRS 13A.120(3) provides, in relevant part:

(3) If a statute requires an administrative body or official to submit an administrative regulation to an official or administrative body for review or approval prior to filing the administrative regulation with the commission, the administrative body or official shall not file the administrative regulation without first having obtained the review or approval.

KRS 13A.120(4) further provides that "any administrative regulation in violation of this section or the spirit thereof is null, void, and unenforceable. "

Since KRS 351.105(11) requires the Mining Board to review and approve all administrative regulations proposed by the Department of Natural Resources pertaining to the mining of coal, penalties, or the certification of miners before those regulations can be promulgated, KRS 13A.120(3) forbids the Department of Natural Resources from filing any regulations pertaining to the mining of coal, penalties, or the certification of miners without the approval of the Mining Board. Any such regulations filed without the Mining Board's approval would be in violation of KRS 13A.120(3) and thus null, void, and unenforceable under KRS 13A.120(4).

While it may be argued that the Mining Board is only required to review and approve regulations promulgated by the Department of Natural Resources, and is not explicitly given the power to disapprove regulations, such a power may fairly be implied. "Powers of administrative boards are those conferred expressly or by necessity or fair implication. Ashland-Boyd County City-County Health Dept. v. Riggs, 252 S.W.2d 922, 923. It is fairly implied that the power to approve statutes includes the power to disapprove; otherwise the power to approve would be rendered meaningless. It is also a principle of statutory construction that the Kentucky Revised Statutes "shall be liberally construed with a view to promote their objects and carry out the intent of the legislature." 3 To interpret the power of approval given to the Mining Board in KRS 351.105(11) as not including the power to disapprove of regulations would make the Mining Board essentially a superfluous rubber-stamp organization, and would render 351.105(11) frivolous. 351.105(11) should be interpreted as instilling the Mining Board with the power to disapprove of regulations proposed by the Department of Natural Resources, as the interpretation promotes the objects and carries out the intent of the General Assembly in creating the Mining Board.

While KRS 351.105(11) gives the Mining Board power of approval over any regulations proposed by the Department of Natural Resources that relate to the mining of coal, penalties, or the certification of miners, the Mining Board's review power over administrative regulations is correspondingly limited only to regulations meeting that description. The powers of administrative bodies "are limited to those powers expressly conferred by statute or which exist by necessary and fair implication." Blue Boar Cafeteria v. Hackett, 227 S.W.2d 199, 201 (Ky. 1950). "Powers not conferred are just as plainly prohibited as those which are expressly forbidden." Louisville and Jefferson County Planning Commission v. Schmidt, 83 S.W.3d 449, 460 fn.14 (Ky. 2001), quoting Allen v. Hollingsworth, 56 S.W.2d 530, 532 (Ky. App. 1933).

Since the Mining Board has only the authority conferred upon it by statute, it has no authority over regulations promulgated directly by the secretary of the Environmental and Public Protection Cabinet under KRS 351.070(13). KRS 351.070(13) is a general grant of authority to the secretary of the Environmental and Public Protection Cabinet to promulgate any administrative regulations necessary provides, in relevant part:

(13) The secretary of the Environmental and Public Protection Cabinet shall have the power and authority to promulgate, amend, or rescind any administrative regulations he or she deems necessary and suitable for the proper administration of this chapter.

The Mining Board is only explicitly given the power to approve regulations proposed by the Department of Natural Resources, and not those promulgated by the secretary of the Environmental and Public Protection Cabinet. It follows that the Mining Board has no power over regulations promulgated directly by the secretary, even if those regulations relate to the mining of coal, penalties, or the certification of miners.

The Department of Natural Resources argues that the Mining Board's substantive authority is defined by KRS 351.106(1) and (11), which give the Mining Board, respectively, the authority to establish education and training criteria for mine personnel, and to recognize other states' mine training certifications as adequate. 4 The Department of Natural Resources further argues that KRS 351.105(11) is unconstitutional to the extent that it grants authority to the Mining Board to review regulations promulgated by the secretary via the Department of Natural Resources relating to coal mining and penalties, as areas where the secretary and not the Mining Board has been granted enabling authority. We do not agree with either argument.

First, the Department of Natural Resources is mistaken in taking the substantive authority of the Mining Board to be defined by KRS 351.106 and neglecting KRS 351.105, in which the Mining Board is established and given general powers that extend beyond certification and training of mine personnel, such as the power to review KRS 351 and 352 and make recommendations, conduct hearings, compel witnesses, and act on all matters deemed appropriate for board action. KRS 351.105(11) specifically grants the Mining Board authority over regulations promulgated by the Department of Natural resources relating to coal mining and penalties, and not just miner personnel training and certification.

Second, while the Department of Natural Resources is correct that KRS 351.070(13) grants the secretary a broad general power to promulgate regulations necessary to implement KRS 351, KRS 351.105(11) is not unconstitutional because KRS 351.070(13) is not actually in conflict with KRS 351.105(11). When the application of two statutes leads to apparent conflict, they should be harmonized if possible. 5 While the Department of Natural Resources is right in concluding that the Mining Board has no authority over regulations promulgated by the secretary directly, the secretary is distinct from the Department of Natural Resources. It is not unconstitutional for the Mining Board to review and approve regulations promulgated by the Department of Natural Resources which has not been promulgated by the secretary on the secretary's own authority. KRS 351.105(11) and KRS 351.070(13) are consistent in that the Mining Board can and must review regulations promulgated via the Department of Natural Resources under KRS 351.105(11), and that the secretary may at any time promulgate any regulations the secretary deems necessary for the administration of KRS 351 through the secretary's own authority under KRS 351.070(13), which the Mining Board has no authority to review. Should the secretary choose to promulgate regulations through the Department of Natural Resources, those regulations would be subject to Mining Board approval.

Accordingly, it is our opinion that the Department of Natural Resources must submit any proposed regulation relating to the mining of coal, penalties, or the certification of miners to the Mining Board under KRS 351.105(11), and cannot promulgate that regulation unless the Mining Board approves it under KRS 13A.120(3). The Mining Board has no authority to review or approve regulations promulgated directly by the secretary of the Environmental and Public Protection Cabinet through the secretary's own authority under KRS 351.070(13).

Footnotes

Footnotes

1 KRS 446.010(30).