KRC Voices Concern Over KPDES Hearing Regulation Change Posted: May 12, 2010
Hi Abby, Sandy, Bruce and John.
I'm writing to express my concern with the amended version of 401 KAR 5:075 Section 11. The change appears to conflict with the statute, which allows a request for a hearing under 224.10-420(2) for a period of "thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice." By making the 30-day appeal period run from the date "the determination is entered by the cabinet" the regulation appears to abridge the time period since, depending on when the agency publishes to commenters and to the public the making of the permit decision, some or all of the 30-day period could run before a petitioner could receive actual notice or could reasonably have had such notice.
It is also unclear how a "determination is entered by the cabinet" when the determination is "the final permit decision." Where such a decision is "entered" is unclear, and because that entry is now to be the triggering event, such ambiguity is of grave concern.
Historically and currently, a letter is sent to commenters by the agency informing them of the permit decision, which letter includes a sentence alerting the recipient to the opportunity to request a hearing within thirty days of receipt. The current process is in accord with the statutory intent and language triggering the appeal clock based on actual or constructive notice.
I would ask that the agency withdraw the filing or commit to changing the language before the ARRS, in order to conform to the statute.