ELR Citation: ELR 20811
No(s). 89-SC-000038-DG (Ky. Jan 18, 1990)

The court holds that Regulation 8 and its vehicle emissions testing (VET) program created by the Air Pollution Control District (APCD) of Jefferson County, Kentucky, is constitutional. The VET program—which applies to all motor vehicles registered in Jefferson County, to vehicles located in Jefferson County but registered to the federal or state government, and to vehicles registered in other Kentucky counties but owned by declared Jefferson County residents—requires owners to have such vehicles inspected and tested once each year to determine whether they emit carbon monoxide, carbon dioxide, or hydrocarbons in excess of prescribed standards. The court holds that the APCD organic statute confers significant general powers on the APCD to make regulations necessary to carry out the statute's provisions and purposes, to establish reasonable limits for particular air contaminants, and to regulate the amounts of air contaminants released within the districts. It would be unreasonable to conclude that the statute was intended to limit APCD's powers to those specifically enumerated. The court holds that the regulations testing program, when measured in light of the relevant factors governing reasonability, is constitutional and enforceable. The court next holds that Regulation 8 does not violate equal protection interests, even though it exempts vehicles that have failed a retest and could not be brought into compliance without excess cost. Since the regulation's overall impact is the measurable reduction of vehicle emissions in Jefferson County to levels below those mandated by federal law, the exemption has a rational basis. Moreover, because Jefferson County lacks jurisdiction to require nonresident owners and operators of out-of-county vehicles to test their vehicles under the VET program, appellees' equal protection rights are not denied. The court next holds that Regulation 8 does not deny appellees' due process rights by depriving them of their property, since they are entitled to all of the due process rights afforded other criminal defendants. Finally, the court holds that any profit built into the $6 inspection fee paid to the private contractor who performs the VET program testing is of no significance and is constitutional.

A concurring opinion would hold that it is not unreasonable to require the exempted vehicles to be brought into compliance simply because it would cost too much. A dissenting opinion would hold that the exemption for one specific class—the very worst polluters—bears no rational relationship to the regulations and is unconstitutional.

Counsel for Movants
Theodore H. Amshoff Jr., Robert M. Stevenson, James W. Turner Jr.
Amshoff & Amshoff
2200 Citizens Plaza, P.O. Drawer 2848, Louisville KY 40201
(502) 582-3500

Counsel for Respondents
Eugene L. Mosley, Evan G. Perkins, Gaylord B. Ballard
Miller, Mosley, Clare & Townes
Hart Block Bldg., Fifth Fl., 730 W. Main St., Louisville KY 40202
(502) 582-3891

Frederick J. Cowan, Attorney General
David R. Vandeventer, Ass't Attorney General
State Capitol, Frankfort KY 40601
(502) 564-7600

"Before: COMBS, DYCHE, and GUDGEL, Judges.