concurring.
I concur with the result achieved by the majority opinion, but I believe that the system used for the control of air pollution in Jefferson County is riddled with serious and improper exemptions. However, I do not believe the nature of the exemptions render the entire act unconstitutional.
Under Regulation 8(8)(e), motor vehicles requiring repair in excess of the dollar limits set out in the regulation are exempt from enforcement. Consequently the owners of the motor vehicles that emit the greatest amount of pollutants may continue to operate their vehicles without any sanction.
The New Mexico Supreme Court invalidated a similar repair exemption provision holding that such a distinction is not rational and does not have a reasonable basis, nor is it designed to further the objectives of cleaning the air. Chapman v. Luna, 101 N.M. 59, 678 P.2d 687 (1984) cert. den. 474 U.S. 947, 106 S.Ct. 345, 88 L.Ed.2d 292 (1985). I can agree with our court when Chapman, supra is distinguished because there was no consideration given as to whether the exemption adversely affected the testing program’s overall effectiveness. I disagree with the majority that it would be unreasonable to require the exempted vehicles to be brought into compliance simply because it would cost too much. The worst polluters cannot be allowed to continue to infect the air. The system should be applied to all vehicles, including city bus transportation and trucks of all description and size. The law must be applied equally to all citizens. The Kentucky constitution forbids the exercise of absolute and arbitrary power even by the largest majority. Const. § 2. An administrative agency is prohibited from acting in an arbitrary manner by this constitutional section. Bunch v. Personnel Board, Ky.App. 719 S.W.2d 8 (1986).
The control of air pollution is one of the most serious problems in our society within this state as well as our nation. Public health and safety is the proper concern of government, and consequently air pollution emission standards should apply to all polluters. In this case, I believe the regulation is constitutional but it is not applied to the extent that it should be and it is not fully implemented.