These comments are submitted on behalf of the Kentucky Resources Council, Inc. (KRC) concerning the proposed amendments to 401 KAR 100:010. KRC, as you are aware, is a non-profit environmental advocacy organization providing legal and technical assistance without cost to low-income individuals, communities and community groups concerning environmental matters. KRC has represented hundreds of individuals and communities in scores of cases before the agency during the past 23 years, and participated actively in the negotiation of the language of current KRS 224.10-440 allowing use of pre-filed written testimony and establishing hearing process timeframes.
After reviewing the proposed amendments to 401 KAR 100:010, KRC offers these comments:
KRC supports the inclusion of hearings arising under Chapter 149 under this hearing practice regulation.
Sections 2, 3, 4, 5, 9
KRC supports the proposed amendments to these sections.
KRC supports the elimination of a stamping requirement for determining receipt; however, some notation of the date (whether by email, fax or hand-delivery) is appropriate to document date of receipt.
KRC questions whether the term “establishing” would be better replaced by “describing”, since it is the Hearing Officer that establishes whether the described interest is sufficient to support intervention.
Section 12, 13
KRC does not oppose the shifting of some of the responsibility to the opposing party to move for a show cause order where there is a failure of an opposing party to timely comply; however it is unclear whether, upon motion, the Hearing Officer is obligated to issue such an order. Inclusion of the new language and retention of the word “shall” would clarify that the Hearing Officer may, at his discretion, or shall, upon motion, issue such an order.
KRC recommends a slight revision of the enabling language in order to clarify that the Hearing Officer may require prefiled written testimony for all or some cases. The current proposed language implies that if the Hearing Officer requires prefiled written testimony, he or she must do so for all categories of cases. KRC suggests instead that:
. . . the hearing officer may require, on a case-by-case basis or for all or some categories of cases, the filing of the written . . . .
Thank you in advance for your consideration of these comments.