[Federal Register Volume 59, Number 15 (Monday, January 24, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1420]
Federal Register / Vol. 59, No. 15 / Monday, January 24, 1994 /
[[Page Unknown]]
[Federal Register: January 24, 1994]
VOL. 59, NO. 15
Monday, January 24, 1994
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
Wyoming Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendments and modification of
condition of program approval.
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SUMMARY: The Secretary of the Interior is announcing the approval, with
certain exceptions, of proposed amendments to the Wyoming permanent
regulatory program (hereinafter, the ``Wyoming program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act),
and the corresponding modification of the one remaining condition of
program approval. The amendments primarily address the recovery of
costs and expenses, including attorney's fees, incurred in connection
with administrative review proceedings under the Wyoming program, but
they also include provisions pertaining to formal and informal
administrative reviews in general, intervention in administrative
review proceedings, and the definition of toxic materials. The
amendments are intended to revise the Wyoming program to be consistent
with the corresponding Federal standards and to clarify State operating
procedures.
EFFECTIVE DATE: January 24, 1994.
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program amendments
can be found at 30 CFR 950.11, 950.12, 950.15, and 950.16.
II. Submission of Amendments
On March 9, 1993 (Administrative Record No. WY-22-1), Wyoming
submitted a proposed amendment comprised of (1) Enrolled Act No. 60
(1993 General Session), which, as signed into law on March 2, 1993,
revised subsection (f) of section 35-11-437 of the Wyoming Statutes
(W.S.) and added a new subsection (g) to this section, and (2) a number
of changes to Chapter V of the Rules of Practice and Procedure of the
Wyoming Department of Environmental Quality (DEQ). Both Enrolled Act
No. 60 and the regulation changes pertain solely to the award of costs
and expenses in connection with administrative and judicial proceedings
under the approved State program.
The State submitted the amendment primarily to satisfy a condition
the Secretary placed on the approval of the Wyoming program at 30 CFR
950.11(c) (hereinafter, condition ``c''). This condition requires the
State to amend its program to include provisions that are consistent
with the Federal regulations at 43 CFR part 4 concerning intervention
in administrative review proceedings and the recovery of costs and
expenses, including attorney's fees, incurred in connection with
participation in such proceedings.
Wyoming originally promulgated Chapter V of the DEQ Rules of
Practice and Procedure on August 3, 1982, and submitted it to OSM as a
program amendment by letter dated August 18, 1982. This amendment also
included a revised version of section 7 of Chapter II of the DEQ Rules
of Practice and Procedure; the revisions of this chapter were intended
to satisfy the intervention portion of condition ``c.'' Wyoming had
previously promulgated these rules in identical form as temporary
emergency regulations, which were submitted to OSM on May 26, 1982.
After reviewing the emergency regulations, OSM determined that they did
not fully satisfy condition ``c.'' Therefore, instead of acting upon
these portions of the May 26, 1982, proposed amendment, OSM extended
the deadline for Wyoming to meet the condition (47 FR 42351-52,
September 27, 1982). Similarly, OSM never acted upon the corresponding
portions of the August 18, 1982, submittal, which were identical to the
May 26, 1982, submittal.
The August 18, 1982, submittal also included (1) a revised
definition of ``toxic materials'' at Chapter I, section 2(99) of the
Rules and Regulations of DEQ's Land Quality Division (LQD), and (2) a
new Chapter VI to be added to the DEQ Rules of Practice and Procedure.
The new chapter authorizes the Director of the DEQ to informally review
and modify decisions of division administrators (including the
Administrator of the LQD) and establishes procedures and requirements
governing such reviews. OSM also did not act upon these portions of the
proposed amendment at the time of submittal.
Because the March 9, 1993, submittal revises part of the August 18,
1982, submittal, OSM is taking this opportunity to announce a decision
on both submittals. Except for recodification of the definition of
toxic materials, no changes other than those contained in the March 9,
1993, submittal have been made in the regulations submitted on August
18, 1982. (See letter from Wyoming dated August 27, 1992
(Administrative Record No. WY-22-2).)
OSM announced receipt of the March 9, 1993, submittal in the March
30, 1993, Federal Register (57 FR 16637), and, in the same document,
opened the public comment period and provided opportunity for a public
hearing on the substantive adequacy of both the August 18, 1982, and
the March 9, 1993, submittals. The public comment period closed on
April 29, 1993. A public hearing was not held because no one requested
an opportunity to testify.
III. Secretary's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Secretary's findings concerning the
proposed amendments submitted by Wyoming on August 18, 1982, and March
9, 1993.
1. Award of Costs and Expenses: General
Section 525(e) of SMCRA provides that:
Whenever an order is issued under this section, or as a result
of any administrative proceeding under this Act, at the request of
any person, a sum equal to the aggregate amount of all costs and
expenses (including attorney fees) as determined by the Secretary to
have been reasonably incurred by such person for or in connection
with his participation in such proceedings, including any judicial
review of agency actions, may be assessed against either party as
the court, resulting from judicial review, or the Secretary,
resulting from administrative proceedings, deems proper.
Although section 525(e) is not directly applicable to State
programs, section 102(i) of SMCRA specifies that one of the purposes of
the Act is to ``assure that appropriate procedures are provided for the
public participation in the development, revision, and enforcement of
regulations, standards, reclamation plans, or programs established by
the Secretary or any State under this Act.'' To implement this
provision, the Federal regulations at 30 CFR 732.15(b)(10) require that
State programs ``[p]rovide for public participation in the development,
revision and enforcement of State regulations and the State program,
consistent with public participation requirements of the Act and this
chapter.'' Furthermore, 30 CFR 732.15(b)(14) requires that State
programs ``[p]rovide for administrative review of State program
actions, in accordance with section 525 of the Act and subchapter L of
this chapter,'' and 30 CFR 840.15 specifies that ``[e]ach State program
shall provide for public participation in enforcement of the State
program consistent with that provided by 30 CFR parts 842, 843 and 845
and 43 CFR part 4.''
The preambles to both 30 CFR 732.15(b)(10) and 840.15 explain that
these rules mean that the State program must authorize the award of
costs and expenses incurred in connection with administrative and
judicial proceedings as provided under sections 520 (d) and (f) and
525(e) of SMCRA and 43 CFR part 4 (44 FR 14965, 15297, March 13, 1979).
In 1981 and 1982, OSM considered revising these two rules to modify
this interpretation, but, ultimately, no changes were adopted (47 FR
26359-60, June 17, 1982; 47 FR 35625, August 16, 1982). Therefore, the
1979 preamble is still an authoritative explanation of the Federal
regulations currently in effect.
W.S. 35-11-902(e) and 35-11-901(p), the Wyoming program
counterparts to paragraphs (d) and (f), respectively, of section 520 of
SMCRA, are unaffected by the amendments under consideration in this
rulemaking. These provisions, which authorize the award of costs and
expenses incurred in connection with citizen suits to compel compliance
with regulatory requirements or to recover damages for personal injury
or property damage sustained as a result of a violation, are
substantively identical to and consistent with their Federal
counterparts.
However, Wyoming Enrolled Act No. 60, as submitted on March 9,
1993, extensively revises W.S. 35-11-437(f), the Wyoming counterpart to
section 525(e) of SMCRA, which authorizes the award of costs and
expenses incurred in connection with administrative proceedings and
judicial review of agency actions. Enrolled Act No. 60 also adds W.S.
35-11-437(g), which further restricts awards of costs and expenses
under subsection (f). As discussed below in this finding and in
findings 3, 5, 6, and 7, the Secretary has determined that W.S. 35-11-
437 (f) and (g) are not fully consistent with section 525(e) of SMCRA
and the Federal regulations implementing that provision of SMCRA.
Chapter V of the DEQ Rules of Practice and Procedure is the Wyoming
counterpart to the Federal rules at 43 CFR 4.1290 through 4.1296, which
implement section 525(e) of SMCRA with respect to awards of costs and
expenses incurred in connection with administrative review proceedings.
Except as discussed below in this finding, these State rules, as
submitted on August 18, 1982, and revised by submittal dated March 9,
1993, are substantively identical to the Federal rules. Finding 2
explains why Wyoming's use of the term ``contested case'' is not a
substantive difference.
The Wyoming rules do not include a counterpart to either 43 CFR
4.1296, which provides that an administrative law judge's decision on a
petition for an award of costs and expenses may be appealed to the
Interior Board of Land Appeals, or that portion of 43 CFR 4.1291 that
specifies where a petition for an award of costs and expenses must be
filed. However, unlike the two-tiered Federal administrative review
system, Wyoming has only one administrative review entity, the
Environmental quality Council (EQC or the Council). Therefore, neither
of these provisions is needed since (1) there is no question as to the
entity with which the petition must be filed, and (2) no administrative
review of an EQC decision is possible because no higher-level
administrative review entity exists. Furthermore, both Sections 2 and
3.a.(2) of Chapter V clearly identify the Council as the entity
responsible for the processing of petitions for the award of costs and
expenses.
However, the statute is inconsistent with the regulations in that
W.S. 35-11-437(f) vets the Director of the DEQ with the responsibility
for processing petitions and determining awards, whereas Chapter V of
the DEQ Rules of Practice and Procedure assigns this responsibility to
the Council. Since 43 CFR 4.1291 requires that petitions be filed with
and processed by the administrative review entity that decided the
underlying case, the Secretary finds that W.S. 35-11-437(f) is
inconsistent with the Federal regulations to the extent that it assigns
this responsibility to the Director of the DEQ, who has no formal
administrative review function, rather than the Council. Therefore, the
Secretary is not approving the phrases ``by the director'' and ``as the
court or the director deems proper'' in the first sentence of W.S. 35-
11-437(f). Nothing in these actions shall be construed as eliminating
the ``deems proper'' standard of review or as vesting the Council with
the authority to review or decide petitions for the award of costs and
expenses incurred in connection with judicial proceedings. The
Secretary is disapproving the entire phrase ``as the court or the
director deems proper'' to avoid creating a situation in which only the
court would have the authority to assess awards under the Wyoming
statute, as could be the case if only the clause ``or the director''
within that phrase was disapproved.
The Wyoming rules also lack a counterpart to 43 CFR 4.1294(a)(2),
which allows an award of costs and expenses to any person from the
permitte if the person initiates an application for review of alleged
discriminatory acts pursuant to 30 CFR part 830 (since recodified as 30
CFR part 865) upon a finding of discriminatory discharge or other acts
of discrimination. However, nothing in SMCRA or the Federal regulations
requires that State programs include a counterpart to section 703 of
the Act or its implementing regulations at 30 CFR part 865. Any person
who believes they have been discriminated against in violation of this
section of the Act has the right to file an application for review
directly with OSM in accordance with 30 CFR part 865. Any resulting
hearings would be held by the Office of Hearings and Appeals of the
Department of the Interior in accordance with 43 CFR part 4 and the
applicant would have the right to file a petition for an award of costs
and expenses under 43 CFR 4.1294(a)(2).
Therefore, the Secretary finds that Chapter V of the DEQ Rules of
Practice and Procedure, as submitted on August 18, 1982, and revised on
March 9, 1993, is not inconsistent with the Federal requirements
concerning the award of costs and expenses incurred in connection with
administrative proceedings, as set forth in section 525(e) of SMCRA and
43 CFR part 4. Accordingly, the Secretary is approving these State
rules.
2. Award of Costs and Expenses: Contested Case Requirement
Wyoming has revised both W.S. 35-11-437(f) and Section 2.a.(3) of
Chapter V of DEQ's Rules of Practice and Procedure to provide that
participants in administrative proceedings may recover costs and
expenses only if the proceeding is a ``contested case'' proceeding,
although the regulations use this language only in connection with
awards from the State, not awards from other parties. Section 525(e) of
SMCRA provides for the award of costs and expenses incurred in
connection with ``any administrative proceeding.'' Prior to the State's
adoption of the amendment under consideration in this rulemaking, W.S.
35-11-437(f) contained similar language.
Although neither the Wyoming Environmental Quality Act (EQA) nor
the DEQ Rules of Practice and Procedure directly define ``contested
case,'' Chapter I, Section 2.a. of the DEQ Rules of Practice and
Procedure indicates that all definitions contained in the Wyoming
Administrative Procedure Act, which does define this term, are
incorporated by reference. However, Sections 1 and 2.a.(4) of Chapter I
of the DEQ Rules define the Wyoming Administrative Procedure Act as
W.S. 9-4-101 through 9-4-115. These citations appear to be in error
since Title 9 of the Wyoming Statutes does not pertain to
administrative review of agency actions. The correct citation appears
to be W.S. 16-3-101 through 16-3-115, which W.S. 16-3-101 (a) and
(b)(xi) identify as the Wyoming Administrative Procedure Act. The
Secretary encourages Wyoming to correct this citation error.
W.S. 16-3-101(b)(ii) defines ``contested case'' as ''a proceeding
including but not restricted to ratemaking, price fixing and licensing,
in which legal rights, duties or privileges of a party are required by
law to be determined by an agency after an opportunity for hearing but
excludes designations under W.S. 9-2-1022(h)(i).''
The State has not clearly indicated how this definition would
translate in practice to actions and proceedings under the Wyoming
Environmental Quality Act and its implementing regulations. However, in
an October 29, 1992, document entitled ``Statement of Principal Reasons
for Adoption'' that accompanied the revised rules, the Council stated
that ``the words `contested case' were added before the word
`proceeding' * * * to clarify that fees may be awarded only in
contested cases, as opposed to rulemaking hearings.''
Both the Interior Board of Land Appeals (IBLA or the Board) and the
U.S. District Court for the Utah District declined to delineate the
full reach of the phrase ``any administrative proceeding'' in section
525(e) of SMCRA when presented with an opportunity to do so. Natural
Resources Defense Council, Inc (NRDC), et al. v. Office of Surface
Mining Reclamation and Enforcement (OSM), et al., 107 IBLA 339, 356 n.
12 (1989); Utah International, Inc. v. Department of Interior, 643 F.
Supp. 810, 825 n. 26 (D. Utah 1986). However, in deciding these cases,
both the IBLA and the U.S. District Court held that this phrase should
not be read literally, but rather must be interpreted in the context of
the legislative history of SMCRA and case law concerning attorney fee
and expense awards under other statutes. Both opinions contain
extensive dicta suggesting that the phrase could or should be read to
include only administrative proceedings of an adjudicatory nature, not
proceedings that are part of the fact-finding process culminating in an
initial agency decision, e.g., informal conferences on permit
applications. NRDC, supra, at 354-360; Utah International, supra, at
820-825.
Furthermore, the Federal regulations at 43 CFR 4.1290 and 4.1291,
which implement this section of SMCRA in part, provide for an award of
costs and expenses only in connection with administrative proceedings
resulting in the issuance of a final order by an administrative law
judge or the IBLA. The preamble to these regulations notes that the
Secretary rejected comments requesting that the scope of the rules be
expanded to allow the award of costs and expenses in other types of
administrative proceedings, such as rulemaking (43 FR 34385, August 3,
1978).
Therefore, the Secretary finds that the Wyoming statutory and
regulatory provisions allowing the award of costs and expenses only in
connection with a ``contested case'' proceeding are not inconsistent
with section 525(e) of SMCRA and its implementing regulations, as
interpreted by case law. However, the Secretary's approval is
predicated upon Wyoming's interpretation of the term ``contested case''
to include all classes of actions in which participants would be
eligible for an award of costs and expenses under 43 CFR 4.1290 through
4.1295, consistent with the discussion set forth above. At a minimum,
the term must include all administrative proceedings of an adjudicatory
nature. Additionally, as more case law develops, it may be necessary to
further expand the interpretation to include other types of
administrative proceedings.
3. Award of Costs and Expenses: Eligible Issues [W.S. 35-11-437(f)(i)]
Wyoming Enrolled Act No. 60 revises W.S. 35-11-437(f) to provide
that a participant in a proceeding is eligible to receive an award of
costs and expenses from the State only if the issues resolved in the
contested proceeding were raised in the original complaint and within
the statutory timeframes of W.S. 35-11-406(p) or within an enforcement
action.
Section 525(e) of SMCRA does not provide a basis for a limitation
of this nature. The purpose of section 525(e) is to facilitate public
participation in the administrative and judicial review process, as
required by section 102(i) of the Act. As stated in the preamble to 43
CFR 4.1290 through 4.1295 as originally proposed:
The legislative history of the Act is clear that section 525(e)
of the Act is intended to encourage public participation in the
administrative process. Such a provision is designed to encourage
citizens to bring good faith actions to insure that the Act is being
properly enforced. It is the intention of the Office that these
proposed rules not be interpreted to discourage good faith actions
on the part of interested citizens.
43 FR 15444, April 13, 1978.
Administrative and judicial review entities may not be obligated to
accept untimely filings or amended complaints, but if they do there is
no basis for excluding participants in the affected proceeding from
eligibility for an award of costs and expenses. Such persons are
entitled to all the rights and privileges accorded to other litigants.
Additionally, restricting awards under W.S. 35-11-437(f) to issues
``raised within the statutory time frames of W.S. 35-11-406(p) or
within an enforcement action'' would improperly limit the type of
proceedings for which an award may be made. As previously noted,
section 525(e) of SMCRA allows awards in connection with ``any
administrative proceeding under this Act.''
Furthermore, the meaning of the new State statutory language is
unclear since W.S. 35-11-406(p) does not establish timeframes for
appealing agency actions. Instead, it merely specifies the time within
which the regulatory authority must render a decision on a permit
application. To be consistent with NRDC, supra, in which the IBLA found
the plaintiffs eligible for an award of costs and expenses pursuant to
section 525(e) of SMCRA as a result of their participation in an
administrative appeal of a decision on a permit application, Wyoming
must likewise authorize the award of costs and expenses incurred in
connection with administrative review of regulatory authority decisions
on permit applications.
Even if the State language were to be interpreted as including
permit application decisions, restricting award eligibility to
proceedings involving either enforcement actions or decisions on permit
applications is inconsistent with Utah International, supra. Although
the opinion accompanying the Utah International decision contains
numerous statements that section 525(e) does not apply to
nonenforcement administrative proceedings, the court ultimately awarded
attorney fees to the plaintiffs in this case as a result of their
participation in judicial proceedings concerning a designation of
certain lands as unsuitable for surface coal mining operations.
Decisions on petitions to designate lands as unsuitable for mining are
not enforcement actions or proceedings. Therefore, the court clearly
did not intend to limit attorney fee awards to proceedings concerning
enforcement actions. In NRDC, the IBLA specifically rejected the
argument that Utah International restricts the scope of section 525(e)
in this fashion. 107 IBLA 359-60. The Board further stated that
``[t]here is no question that Congress intended to encompass more than
section 525 enforcement proceedings within the bounds of section
525(e)'' (107 IBLA 356, emphasis in original), and that ``[a]t best,
the legislative history supports a limitation of section 525(e) to
adjudicatory proceedings'' (107 IBLA 357).
Therefore, the Secretary finds that W.S. 35-11-437(f)(i), which
contains the provision in question, is inconsistent with section 525(e)
of SMCRA, and he is not approving it.
The Secretary notes that the regulations submitted by the State do
not contain this defect: Chapter V, Section 2.a.(3) of the DEQ Rules of
Practice and Procedure allows the award of costs and expenses to any
person who ``initiates or participants in any contested case proceeding
under the act'' (emphasis added).
4. Award of Costs and Expenses: Requirement for Separate and Distinct
Contribution [W.S. 35-11-437(f)(ii)]
Wyoming Enrolled Act No. 60 revises W.S. 35-11-437(f) to specify
that a participant in an eligible proceeding who did not initiate the
proceeding may receive an award of costs and expenses from the State
only if that person's contribution is separate and distinct from the
contribution made by the person initiating the proceeding. Neither
section 525(e) of SMCRA nor the corresponding Federal regulations at 43
CFR 4.1294(b) contain a similar provision.
However, the preamble to 43 CFR 4.129(a)(1) clarifies that this
requirement is implicit in the provision that, to be eligible for an
award, the party must have made a substantial contribution to a full
and fair determination of the issues (50 FR 47223, November 15, 1985).
Since 43 CFR 4.1294(b) contains a ``substantial contribution''
provision identical to that of paragraph (a)(1), the same rationale
would apply. Accordingly, the Secretary finds that W.S. 35-11-
437(f)(ii), which adds the ``separate and distinct'' stipulation, is
not inconsistent with SMCRA or the Federal regulations, and is
approving it.
5. Award of Costs and Expenses: Requirement for Establishment of
Existence of Violation [W.S. 35-11-437(f)(iii)]
Wyoming Enrolled Act No. 60 revises W.S. 35-11-437(f) to allow the
award of costs and expenses from the State only if the person claiming
eligibility for such an award establishes the existence of a specific
violation of an applicable statute or rule. Neither section 525(e) of
SMCRA nor the Federal regulations contain equivalent language.
Under 43 CFR 4.1294(b), the corresponding Federal regulation, a
person is eligible for an award of costs and expenses from the
regulatory authority if that person ``made a substantial contribution
to a full and fair determination of the issues'' and ``prevails in
whole or in part, achieving at least some degree of success on the
merits.'' While the preamble to 43 CFR 4.1294(a)(1) states that meeting
a requirement for a finding that a violation of the Act, regulations or
permit has occurred is comparable to a showing of some degree of
success on the merits (50 FR 47223, November 15, 1985), the reverse of
this statement is not true. For example, a person involved in an
administrative hearing on a permit decision can achieve at least some
degree of success on the merits (imposition of a permit condition or
issuance of a revision order) without establishing the existence of a
specific violation of statute or rule. The same situation exists with
respect to administrative proceedings that end in settlement
agreements.
Furthermore, the proposed amendment is in direct conflict with the
legislative history of section 525(e) of SMCRA:
Section 525(e) provides for the award of costs, including
attorneys' and expert witness fees, in the discretion of the
Secretary. This section gives the Secretary authority to award
attorneys' fees to compensate participants in the administrative
process. The subsection does not require that the proceedings result
in the finding of a violation nor does the fact that the Government
was a party in an adjudicatory proceeding, or had caused the
proceeding to be initiated, prevent an award under the terms of the
subsection. It is the committee's intention that this subsection not
be interpreted or applied in a manner that would discourage good
faith actions on the part of interested citizens.
H.R. Rep. No. 218, 95th Cong., 1st Sess. 131 (1977).
The provision of H.R. 2 to which this passage applies was
subsequently adopted by the conference committee as part of SMCRA with
only minor changes. The accompanying committee report (H.R. Rep. No.
493, 95th Cong., 1st Sess. 111 (1977)) contains no language repudiating
or modifying the portion of H.R. Rep. No. 218 quoted above.
Therefore, the Secretary finds that W.S. 35-11-437(f)(iii), which
contains the provision in question, is inconsistent with section 525(e)
of SMCRA and the Federal regulations at 43 CFR 4.1294(b), and is not
approving it.
6. Award of Costs and Expenses: Applicability to Judicial Proceedings
and Administrative Proceedings Under EQA Sections Other Than W.S. 35-
11-437
Wyoming Enrolled Act No. 60 revises W.S. 35-11-437(f), the State
counterpart to section 525(e) of SMCRA, by providing in part that costs
and expenses (including attorney's fees) incurred by parties in
connection with a proceeding under the Act may be assessed against one
or more of those parties only if the proceeding is an administrative
proceeding. In relevant part, the revised statute reads as follows:
Whenever an order is issued under this section, at the request
of any person, a sum equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined by the director
to have been reasonably incurred by the person for or in connection
with his participation in the proceeding, including any judicial
review of agency actions, may be assessed against either party as
the court or the director deems proper. This subsection shall apply
only to administrative contested case proceedings under the
provisions of this act relating to the regulation of surface coal
mining and reclamation operations in accordance with P.L. 95-87, as
that law is worded on August 3, 1977.* * *
Although the first sentence of subsection (f), which is essentially
unchanged, would appear to allow assessments in connection with
judicial review proceedings, this provision is now negated by the
second sentence, which has been revised to specify that ``[t]his
subsection shall apply only to administrative contested case
proceedings * * *'' (emphasis added). Therefore, the Secretary finds
that W.S. 35-11-437(f) as revised is inconsistent with section 525(e)
of SMCRA, which allows costs and expenses to be assessed in connection
with both administrative and judicial proceedings.
In addition, the first sentence of subsection (f) (``Whenever an
order is issued under this section, * * *''), authorizes the award of
costs and expenses only in connection with proceedings concerning
enforcement actions since W.S. 35-11-437 (``this section'') pertains
only to such actions. Section 525(e) of SMCRA, which applies
``[w]henever an order is issued under this section, or as a result of
any administrative proceeding under this Act,'' (emphasis added), is
far more expansive in its coverage. Both the plain language of section
525(e) and pertinent case law (e.g., NRDC and Utah International,
supra) extend the reach of paragraph (e) beyond section 525, which
pertains only to administrative review of enforcement actions, to
administrative and judicial review proceedings under other sections of
SMCRA. Therefore, the Secretary finds that W.S. 35-11-437(f) is
inconsistent with section 525(e) of SMCRA to the extent that the State
statutory provision does not apply to proceedings under sections of the
Wyoming Environmental Quality Act other than W.S. 35-11-437.
Based on the preceding discussion, the Secretary is not approving
the introductory clause of the first sentence of W.S. 35-11-37(f)
(``Whenever an order is issued under this section,''), or the words
``only'' and ``administrative'' in the second sentence of this
subsection (``This subsection shall apply only to administrative
contested case proceedings * * *'').
7. Award of Costs and Expenses: Cap on Fees and Costs [W.S. 35-11-
437(g)]
Wyoming Enrolled Act No. 60 revises W.S. 35-11-437 by adding a new
subsection (g), which provides that attorney's fees, expert witness
fees or other fees or costs shall not exceed $50.00 per hour. To the
extent that this provision would apply to awards of costs and expenses
under subsection (f) of W.S. 35-11-437, it is inconsistent with section
525(e) of SMCRA, which authorizes the award of all ``reasonably
incurred'' costs and expenses. An inflexible cap on hourly rates is not
in accordance with SMCRA's reasonable cost standard as interpreted by
the courts, which generally use the prevailing community market rate to
compute award amounts. See NRDC and Utah International, supra.
Therefore, the Secretary is not approving W.S. 35-11-437(g).
8. Right to Intervene in Administrative Proceedings: Chapter II,
Section 7, DEQ Rules of Practice and Procedure
In findings 22.16 and 22.D (45 FR 20977, March 31, 1980; and 45 FR
78674, November 26, 1980, respectively) concerning Wyoming's original
program submittal and subsequent resubmittal, the Secretary determined
that the Wyoming rules governing intervention in administrative review
proceedings did not afford citizens rights of intervention as broad as
those in the Federal regulations at 43 CFR 4.1110. Accordingly, in the
approval of the Wyoming program, the Secretary imposed a condition at
30 CFR 950.11(c) requiring the State to correct this deficiency.
On August 18, 1982, Wyoming submitted a fully promulgated revised
version of Chapter II, Section 7 of the DEQ Rules of Practice and
Procedure. The revised version includes a new subsection b. of Section
7 that is substantively identical to 43 CFR 4.1110. Therefore, the
Secretary finds that the revised rules satisfy the intervention
component of the program condition at 30 CFR 950.11(c), and is
approving the submittal and modifying the condition accordingly.
9. DEQ Rules of Practice and Procedure, Chapter VI: Informal Review by
Director
As submitted on August 18, 1982, this new chapter recognizes the
authority of the Director of the DEQ to review and modify decisions of
the administrators of the various divisions within the Department,
including the Land Quality Division. This arrangement is in accordance
with standard managerial principles and is analogous to the authority
of the Secretary of the Interior to review and modify decisions of the
Director of OSM; therefore, it is not inconsistent with any Federal
requirement under SMCRA.
The new rules grant individuals the right to request that the
Director of the DEQ hold an informal conference to review decisions of
the Administrator; they also establish procedural, notice and decision
requirements to govern such conferences. There are no Federal
counterparts to these provisions, but they are consistent with the
purpose of SMCRA set forth in section 1029(i) of the Act; i.e., the
development of procedures for public participation in the program and
its enforcement.
Furthermore, Sections 4 and 5 of this chapter of the State
regulations provide that (1) failure to seek informal review shall not
be construed as a failure to exhaust administrative remedies, (2) no
evidence as to statements made or evidence produced by one participant
at an informal conference may be introduced by another participant at a
subsequent formal proceeding, and (3) the Director of the DEQ cannot
usurp the authority of the EQC. Therefore, the State rules will not
compromise or encumber the formal administrative review process or the
right to administrative review.
Accordingly, the Secretary finds that Chapter VI of the DEQ Rules
of Practice and Procedure, as submitted on August 18, 1982, is not
inconsistent with SMCRA or the Federal regulations, and is approving
these rules.
10. Definition of ``Toxic Materials''
On August 18, 1982, Wyoming submitted a permanent rule revising the
definition of ``toxic materials'' at Chapter I, Section 2(99) of the
LQD Rules and Regulations in a fashion identical to a temporary
emergency rule submitted on May 26, 1982.
OSM approved the emergency rule on September 27, 1982 (47 FR
42351), and, in the same rulemaking document, removed the corresponding
condition of State program approval at 30 CFR 950.11(b).
Wyoming has since recodified this definition as Chapter I, Section
2(cv) of the LQD Rules and Regulations, but no other changes have
occurred. Similarly, the corresponding Federal definition of ``toxic-
forming materials'' at 30 CFR 701.5 has not changed since it was first
promulgated on March 13, 1979. Because the permanent State definition
at Chapter I, Section 2(cv) of the LQD Rules is identical to the
temporary emergency definition approved by OSM on September 27, 1982,
the Secretary finds it to be no less effective than the Federal
definition, and is approving it.
IV. Summary and Disposition of Comments
Public Comments
OSM announced receipt of the March 9, 1993, submittal in the March
30, 1993, Federal Register (57 FR 16637), and, in the same document,
opened the public comment period and provided opportunity for a public
hearing on the substantive adequacy of both the August 18, 1982, and
the March 9, 1993, submittals. The public comment period closed on
April 29, 1993. A public hearing was not held because no one requested
an opportunity to testify.
Written comments were received from the Wyoming Outdoor Council
(WOC), The Powder River Basin Resource Council (PRBRC), and the
National Wildlife Federation (NWF) (Administrative Record Nos. WY-22-
12, WY-22-14, and WY-22-11, respectively). A summary of these comments
and their disposition is set forth below:
1. WOC, PRBRC, and NWF stated that restricting awards of costs and
expenses to ``contested case'' proceedings would be more limiting than
and inconsistent with section 525(e) of SMCRA and 43 CFR 4.1294. In
particular, several commenters argued that participants in informal
conferences should be eligible for awards of costs and expenses. For
the reasons discussed in finding 2, the Secretary does not agree with
the commenters. Case law associated with implementation of section
525(e) of SMCRA indicates that petitions for awards of costs and
expenses incurred in connection with administrative proceedings must be
entertained only if the proceedings are adjudicatory in nature
(although nothing in these decisions would prohibit the regulatory
authority from voluntarily considering petitions submitted in
connection with other types of administrative proceedings). Informal
conferences are both predecisional and nonadjudicatory.
Neither NRDC nor Utah International, supra, supports awards of
costs and expenses in connection with predecisional nonadjudicatory
administrative proceedings. Therefore, by restricting awards to
contested case proceedings, the Wyoming amendments do not
inappropriately limit the scope of proceedings in which participants
may be eligible for an award of costs and expenses. Additionally, as
discussed in finding 2, the Secretary's approval is predicated upon
Wyoming's interpretation of the term ``contested case'' to include all
classes of actions in which participants would be eligible for an award
of costs and expenses under 43 CFR 4.1290 through 4.1295.
2. WOC, PRBRC, and NWF stated that W.S. 35-11-437(f)(i), which
provides that, to receive an award of costs and expenses from the
State, the issues resolved in the proceeding must be those raised in
the original complaint within certain statutory timeframes or within an
enforcement action, is inconsistent with section 525(e) of SMCRA and 43
CFR 4.1294(b) in that it would improperly narrow the type of
proceedings for which an award could be made. As discussed in finding
3, the Secretary agrees, and is not approving this provision.
3. WOC, PRBRC, and NWF stated that W.S. 35-11-437(f)(ii), which
provides that, to receive an award of costs and expenses from the
State, the contribution of a person who did not initiate a proceeding
must be separate and distinct from the contribution of the person
initiating the proceeding, is inconsistent with section 525(e) of SMCRA
and 43 CFR 4.1294(b), which do not contain this provision. For the
reasons set forth in detail in finding 4, the Secretary does not agree.
NWF also objected to the lack of a definition for ``initiate.''
However, the commenter provided no explanation of why such a definition
is necessary. Since the Secretary is unaware of any confusion as to the
meaning of this term, which appears to be clear on its face, the
Secretary is not requiring that Wyoming provide the definition
requested by the commenter.
NWF further stated that this Wyoming statutory provision is in
conflict with the DEQ Rules of Practice and Procedure, which do not
contain equivalent language. In response, the Secretary notes that,
like the Federal rules at 43 CFR 4.1294(b), Section 2.a.(3) of chapter
V of the Wyoming rules requires that a person make a substantial
contribution to a full and fair determination of the issues to be
eligible for an award of costs and expenses from the regulatory
authority. The preamble to 43 CFR 4.1294 contains the following
discussion:
One comment suggested that the initiator should be required to
make a contribution separate and distinct from OSM in order to be
eligible to recover an award of costs. The final regulation was not
revised to accommodate this comment. However, the requirement that a
contribution be ``substantial'' precludes an award if a contribution
simply duplicates that of OSM.
50 FR 47223, November 15, 1985.
Therefore, as explained in finding 4, the Secretary finds that the
``separate and distinct'' requirement is an implicit component of the
``substantial contribution'' requirement, and that there is no conflict
between the statute and the regulations on this matter.
4. WOC, PRBRC, and NWF stated that W.S. 35-11-437(f)(iii), which
provides that, to receive an award of costs and expenses from the
State, a person must establish the existence of a specific violation of
applicable statute or rule, is inconsistent with section 525(e) of
SMCRA and 43 CFR 4.1294(b). As discussed in detail in finding 5, the
Secretary agrees, and is not approving this provision.
5. PRBRC stated that W.S. 35-11-437(f) is inconsistent with 43 CFR
4.1294(d) because it gives the court or the Director the discretion to
assess awards against any person as deemed proper, without reference to
whether the person participated in bad faith for the purpose of
harassing or embarrassing the permittee. In response, the Secretary
notes that the provision to which the commenter refers is included in
Chapter V of the DEQ Rules of Practice and Procedure (see paragraphs
(2)(a), (4), and (5) of Section 2.a.).
6. PRBRC noted that Chapter V, Section 1 of DEQ's Rules of Practice
and Procedure does not clearly indicate whether a petition for an award
of costs and expenses is to be filed with the EQC or the Director of
the DEQ. While this statement is correct, Sections 2 and 3 of the DEQ
Rules clearly assign responsibility for processing these petitions to
the EQC. As discussed in finding 1, the Secretary agrees that language
to the contrary in W.S. 35-11-437(f) is confusing and inconsistent with
43 CFR 4.1291, and is not approving the conflicting language.
7. PRBRC noted that DEQ's Rules of Practice and Procedure do not
contain a counterpart to 43 CFR 4.1296. As discussed in finding 1, no
State counterpart is needed since, unlike the two-tiered Federal
administrative review system, Wyoming has only one administrative
review entity, the EQC. Hence, administrative review of EQC decisions
is not possible. Likewise, the Federal regulations at 43 CFR 4.1296 do
not provide for administrative review of a petition originally decided
by the Interior Board of Land Appeals, the higher-level administrative
review body under the Federal system.
8. WOC objected to the lack of a State counterpart to 43 CFR
4.1294(a)(2). As discussed in detail in finding 1, no State counterpart
is needed since affected parties have the right to file petitions
directly with OSM; there is no requirement to first exhaust any
available State remedies.
9. PRBRC opposed OSM's decision to process the Wyoming submittals
as program amendments under 30 CFR 732.17. The commenter stated that
because these submittals pertain to a condition of program approval,
the provisions of 30 CFR 732.13(j) apply instead. The Secretary cannot
agree with the commenter. The Federal regulations at 30 CFR 732.17(g)
specifically require that all changes to laws and regulations that make
up the State program be submitted to OSM as a program amendment. Both
the August 18, 1982, and the March 9, 1993, submittals fall into this
category. Furthermore, the provisions of 30 CFR 732.13(j) apply only if
the State has not initiated action to satisfy the condition of program
approval, a situation which does not exist here.
Federal Agency Comments
Pursuant to section 503(b) of SMCRA and its implementing
regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from
various Federal agencies with an actual or potential interest in the
Wyoming program. None of these agencies provided any objection to
approval of the submittals.
State Historic Preservation Office (SHPO) and Advisory Council on
Historic Preservation (ACHP) Comments
As required by 30 CFR 732.17(h)(4), OSM provided the submittals to
the SHPO and ACHP for comment No comments were received.
Environmental Protection Agency Concurrence
Under 30 CFR 732.17(h)(11)(ii), OSM must obtain the written
concurrence of the Administrator of the U.S. Environmental Protection
Agency (EPA) before approving any provisions of a proposed State
program amendment that relate to air or water quality standards
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). On October 25,
1993, the EPA concurred with Wyoming's proposed amendments
(Administrative Record No. WY-22-16).
V. Secretary's Decision
Based on the above findings, the Secretary is approving Wyoming's
proposed program amendments as submitted on August 18, 1992, and March
9, 1993, with the exception of W.S. 35-11-437(g) (see finding 7) and
those provisions of W.S. 35-11-437(f) set forth in findings 1, 3, 5,
and 6. The Secretary also is revising the cost recovery component of
the condition of program approval at 30 CFR 950.11(c) to reflect the
statutory and regulatory changes made by the proposed amendments
consider in this rulemaking. For the reasons discussed in finding 8,
the Secretary is removing the intervention component of the condition.
The Federal regulations at 30 CFR Part 950 codifying decisions
concerning the Wyoming program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal Standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
The Secretary acknowledges that the plaintiff in Powder River Basin
Resource Council v. Babbitt (``Powder River''), No. 92-CV-1021-B (D.
Wyo. September 29, 1993) (Order granting defendants' motions for
summary judgement; notice of appeal filed November 22, 1993), included
in its prayer for relief a request that the court compel the Secretary
to make any amendments satisfying condition ``c'' retroactive to May
20, 1983, the deadline the Secretary had established for Wyoming to
comply with the condition. The Secretary does not find the action
requested by the plaintiff to be appropriate in this instance.
Retroactive application of SMCRA regulations is committed to the
discretion of the Secretary. See id. at 13, n. 4. However, retroactive
application is inconsistent with the traditional presumption that
regulations are prospective, not retroactive, and that advance notice
of their application must be provided. With respect to the current
rulemaking, Wyoming did not propose to apply these amendments
retroactively, and the Secretary is adverse to imposing such a
requirement in the absence of a compelling reason to do so. The Powder
River plaintiff appears to be the only party that would be affected
positively by a retroactive application. This plaintiff did not rely to
its detriment on the existence of cost recovery provisions in the
Wyoming program, but has instead labored for their addition to the
program. In addition, the underlying permit challenge was maintained
despite the absence of the provisions sought by the plaintiff.
The Secretary is reluctant to impose upon Wyoming the obligation to
pay past costs and expenses on the basis of retroactive application of
provisions that, prior to this rulemaking, have not been part of the
State's approved program. However, the Secretary's decision not to
require retroactive application of these amendments does not preclude
Wyoming from paying all or part of the plaintiff's costs and expenses
if the State is so inclined.
VI. Effect of Secretary's Decision
Section 503 of SMCRA provides that a State may not exercise primary
jurisdiction under SMCRA unless the State program is approved by the
Secretary of the Interior. The Federal regulations at 30 CFR 732.17(a)
require that any alteration of an approved State program be submitted
to OSM for review as a program amendment. The Federal regulations at 30
CFR 732.17(g) prohibit any unilateral changes to approved State
programs. Thus, any changes to the State program are not enforceable by
the State as part of the approved State program until they are approved
by the Secretary or the Director. In oversight of the Wyoming program,
the Director will recognize only those statutes, regulations, and other
materials approved by the Director, together with any consistent
implementing policies, directives and other materials, and will require
the enforcement by Wyoming of only such provisions.
VII. Procedural Determinations
Compliance With Executive Order 12866
This final rule is exempt from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
Compliance With Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsection
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 12550) and Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the
requirements of 30 CFR Parts 730, 731, and 732 have been met.
Compliance With the National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Compliance With the Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Hence, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 14, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below.
PART 950--WYOMING
1. The authority citation for part 950 is revised to read:
Authority: 30 U.S.C. 1201 et seq.
2. In Sec. 950.11, paragraph (c) is revised to read:
Sec. 950.11 Terms and conditions of State program approval.
* * * * *
(c) On or before June 1, 1994, Wyoming must revise section 35-11-
437 of the Wyoming Statutes (W.S.) to be consistent with the Federal
requirements at section 525(e) of SMCRA (30 U.S.C. 1275(e)) and 43 CFR
4.1290 through 4.1295 concerning the award of costs and expenses
incurred in connection with administrative and judicial proceedings.
Specifically, the State must revise this section to:
(1) Clearly authorize the award of costs and expenses incurred in
connection with participation in judicial review proceedings concerning
agency actions;
(2) With respect to awards from the State, clearly authorize the
award of costs and expenses incurred in connection with participation
in any administrative contested case proceedings under the approved
program, not just proceedings concerning enforcement actions under W.S.
35-11-437 or actions taken under W.S. 35-11-406(p);
(3) Authorize the award of all reasonably incurred costs and
expenses without placing any inflexible limits on the meaning of
``reasonably incurred'' or restricting awards to issues raised in the
original complaint;
(4) With respect to administrative review proceedings, clarify that
petitions for awards of costs and expenses must be filed with and
reviewed and decided by the Environmental Quality Council, not the
Director of the Department of Environmental Quality; and
(5) With respect to awards from the State, eliminate the
requirement that the person establish the existence of a specific
violation of applicable statute or rule.
3. In Sec. 950.15, paragraph (r) is added to read:
Sec. 950.15 Approval of regulatory program amendments.
* * * * *
(r) Except for the language noted in paragraph (r)(1) of this
section and the addition of paragraph (g), which would establish a
maximum hourly rate for fee awards, to section 35-11-437 of the Wyoming
Statutes, the following amendments to the laws, rules and regulations
of the Wyoming Department of Environmental Quality, as submitted by
Wyoming on August 18, 1982, and March 9, 1993, are approved effective
January 24, 1994.
(1) Section 35-11-437(f) of the Wyoming Statutes as revised by
Enrolled Act No. 60 and submitted on March 9, 1993, except the
following language appearing in italics:
(f) Whenever an order is issued under this section, at the
request of any person, a sum equal to the aggregate amount of all
costs and expenses (including attorney's fees) as determined by the
director to have been reasonably incurred by the person for or in
connection with his participation in the proceeding, including any
judicial review of agency actions, may be assessed against either
party as the court or the director deems proper. This subsection
shall apply only to administrative contested case proceedings under
the provisions of this act relating to the regulation of surface
coal mining and reclamation operations in accordance with Pub. L.
95-87, as that law is worded on August 3, 1977. For payments from
the department, the following shall apply:
(i) The issues resolved in the contested proceeding are those in
the original complaint that were raised within the statutory time
frames under W.S. 35-406(p) or within an enforcement action;
(ii) The contribution of a person who did not initiate a
proceeding shall be separate and distinct from the contribution made
by a person initiating the proceeding;
(iii) The person shall establish the existence of a specific
violation of applicable statute or rule.
(2) Revisions to Chapter II, Section 7 of the Rules of Practice and
Procedure of the Wyoming Department of Environmental Quality, as
submitted on August 18, 1982, concerning rights of intervention in
administrative review proceedings.
(3) The addition of Chapter V, as originally submitted on August
18, 1982, and modified by submittal dated March 9, 1993, to the Rules
of Practice and Procedure of the Wyoming Department of Environmental
Quality. This chapter pertains to the award of costs and expenses
incurred in connection with administrative proceedings.
(4) The addition of Chapter VI, as submitted on August 18, 1982, to
the Rules of Practice and Procedure of the Wyoming Department of
Environmental Quality. This chapter pertains to informal review by the
Director of the Wyoming Department of Environmental Quality of
decisions made by division administrators.
(5) The definition of ``toxic materials'' at Chapter I, Section
2(cv) [formerly Section 2(99)] of the Rules and Regulations of the Land
Quality Division of the Wyoming Department of Environmental Quality, as
submitted on August 18, 1982.
[FR Doc. 94-1420 Filed 1-21-94; 10:00 am]
BILLING CODE 4310-05-M
