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Specific comments follow.

1. A sentence should be added to 401 KAR 9:010 Section 4 specifically providing that the agency shall consider all comments received and shall provide a written response to all significant comments.

The opportunity to provide comment, and the mandate by Congress that such opportunity be provided, implies a right to expect agency response to comments received. Indeed, the failure of an agency to provide in the record of an agency action, sufficient explanation of how comments received were addressed, will require any reviewing court to set aside the agency action as being arbitrary. For the Court reviews the agency action to determine whether due process was afforded, and whether the decision is grounded in substantial evidence on the record taken as a whole, and absent some response to significant comments received, there is no indicia that the agency evaluated the comments and the basis for accepting or rejecting them. Such a lack of evidence of agency consideration of the record will doom any decision on review, since the reviewing court will be unable to determine how the agency gave consideration to such comments in arriving at the final decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).

2. All pending requests for certification as of the date of initial adoption of the emergency regulation, must be subject to public notice. While the agency has received comment suggesting that the implementation of public notice be tiered or restricted to future applications, the recommendation is at variance with the requirement in 33 U.S.C. 1341 that all applications for certification be publicly noticed.

In fact, it could be argued that all existing certifications that have been approved without such notice are void or voidable for want of public notice.

3. All general water quality certifications must be subject to public notice; not only individual certifications. 33 U.S.C. 1341 is unambiguous in stating that “all” applications for certification must be subject to public notice.

4. The Cabinet has sufficient statutory authority to impose reasonable fees on certification applications, pursuant to K.R.S. 224.10-100(5), which empowers and obligates the agency to provide for prevention, abatement and control of water pollution, (7) which empower and authorizes the agency to secure necessary services by contract “or otherwise”; and (20). The argument that a water quality certification is not a “permit authorized by this chapter” within the meaning of K.R.S. 224.10—100(20) is pure sophistry. To the extent that (20) is so narrowly construed, Subsection (25) provides ample authority for adoption of a fee schedule as necessary to “carry out the duties and responsibilities described in this section”.

It is ironic indeed that the regulated entities would ask for a hard timetable for review, processing and approval of WQC applications, yet seek to deny the agency the funding needed to comply with such timeframes, and instead seek, in so denying, to have the public subsidize the processing of the certification applications.

Thank you for your consideration of these comments.

Cordially,

Tom FitzGerald
Director