[Federal Register Volume 59, Number 203 (Friday, October 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26152]
[[Page Unknown]]
[Federal Register: October 21, 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 removal of condition of
program approval.
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SUMMARY: The Secretary of the Interior is announcing the approval of a
proposed amendment 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 removal of the
remaining condition of program approval. The amendment addresses the
recovery of costs and expenses, including attorney's fees, incurred in
connection with administrative and judicial review proceedings under
the Wyoming program. The amendment is intended to revise the Wyoming
program to be consistent with the corresponding Federal standards and
to clarify State operating procedures.
EFFECTIVE DATE: October 21, 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.
On January 24, 1994, the Secretary of the Interior approved, with
certain exceptions, amendments to the Wyoming program provisions
regarding the recovery of costs and expenses, including attorney's
fees, incurred in connection with administrative review proceedings
under the Wyoming program. As a result of this decision, the condition
of program approval at 30 CFR 950.11(c) was modified to require Wyoming
to 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 (see 59 FR 3513). The amendment under
consideration in the current rulemaking is intended to satisfy this
condition.
II. Submission of Amendment
By letter dated April 13, 1994 (Administrative Record No. WY-27-
01), Wyoming submitted Enrolled Act No. 4, which was adopted during the
1994 Budget Session of the Wyoming Legislature and signed into law by
the Governor on March 16, 1994, as a proposed amendment to its
permanent program. The proposed amendment, which consists of statutory
changes to the Wyoming Environmental Quality Act (EQA), is intended to
satisfy the condition of program approval at 30 CFR 950.11(c), as
modified on January 24, 1994 (59 FR 3513). Enrolled Act No. 4 revises
W.S. 35-11-437 by (1) amending the introductory language of subsection
(f) to change the word ``director'' to ``council,'' and add the phrase
``or subsequent judicial review proceedings''; (2) repealing paragraphs
(f)(i) and (f)(iii) in their entirety; and (3) repealing subsection (g)
in its entirety.
OSM announced receipt of the April 13, 1994, submittal in the May
2, 1994, Federal Register (59 FR 22571), and, in the same document,
opened the public comment period and provided opportunity for a public
hearing on the substantive adequacy of the April 13, 1994, submittal.
The public comment period closed on June 1, 1994. 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 amendment submitted by Wyoming on April 13, 1994.
1. 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. 4 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 EQA may be assessed against one
or more of those parties only if the proceeding is a contested case
proceeding or subsequent judicial review proceeding. In relevant part,
the revised statute reads as follows:
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 council 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 council deems
proper. This subsection shall apply only to contested case
proceedings or subsequent judicial review 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
the law is worded on August 3, 1977.
In the decision announced in the January 24, 1994, Federal
Register, the Secretary did not approve the introductory clause of the
first sentence of W.S. 35-11-437(f) (``Whenever an order is issued
under this section,''), the words ``only'' and ``administrative'' in
the second sentence of this subsection (``This subsection shall apply
only to administrative contested case proceedings * * *''), and
paragraph (i) of this subsection (``The issues resolved in the
contested proceeding are those in the original complaint that were
raised within the statutory time frames under W.S. 35-11-406(p) or
within an enforcement action''). In concert with this action, the
Secretary modified the condition of program approval at 30 CFR
950.11(c) by adding paragraphs (1) and (2) to require Wyoming to
clearly authorize the award of costs and expenses incurred in
connection with participation in (1) judicial review proceedings
concerning agency actions, and (2) with respect to awards from the
State, 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). (See findings 3 and
6, 59 FR 3915-17, January 24, 1994.)
The current submittal repeals paragraph (f)(i) and the disapproved
introductory clause discussed above and modifies the remainder of W.S.
35-11-437(f) to clarify that this subsection applies to contested case
proceedings and subsequent judicial review proceedings under any SMCRA-
related provisions of the EQA, not just enforcement actions under W.S.
35-11-437 or proceedings pursuant to W.S. 35-11-406(p). Therefore, the
Secretary finds that the State has satisfied the requirements of 30 CFR
950.11(c) (1) and (2). Accordingly, he is approving the proposed
amendment and removing 30 CFR 950.11(c) (1) and (2).
2. Award of Costs and Expenses: Eligible Issues [W.S. 35-11-437(f)(i)]
Wyoming Enrolled Act No. 4 revises W.S. 35-11-437(f) by repealing
paragraph (i), which provided 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.
As discussed in finding 3 of the January 24, 1994, Federal Register
document (59 FR 3515-16), the Secretary did not approve the now-
repealed provision because he found it to be inconsistent with section
525(e) of SMCRA and 43 CFR 4.1290 through 4.1295. In addition, the
Secretary modified the condition of program approval at 30 CFR
950.11(c) by adding a paragraph (3), which, in part, required that
Wyoming revise its statute to remove the provision limiting awards to
expenses incurred in connection with proceedings involving issues
raised in the original complaint.
The Secretary finds that Wyoming's repeal of W.S. 35-11-437(f)(i)
satisfies the portion of 30 CFR 950.11(c)(3) discussed above.
Therefore, he is approving the proposed amendment and removing the
pertinent portion of the program condition.
3. Award of Costs and Expenses: Cap on Fees and Costs [W.S. 35-11-
437(g)]
Wyoming Enrolled Act No. 4 revises W.S. 35-11-437 by repealing
subsection (g), which provided that attorney's fees, expert witness
fees or other fees or costs shall not exceed $50.00 per hour.
As discussed in finding 7 of the January 24, 1994, Federal Register
document (59 FR 3517), the Secretary did not approve the now-repealed
provision because he found it to be inconsistent with section 525(e) of
SMCRA. In addition, he modified the condition of program approval at 30
CFR 950.11(c) by adding a paragraph (3), which, in part, required that
Wyoming revise its statute to authorize the award of all reasonably
incurred costs and expenses without placing any inflexible limits on
the meaning of ``reasonably incurred.''
The Secretary finds that Wyoming's repeal of W.S. 35-11-437(g) and
its hourly rate cap satisfies the portion of 30 CFR 950.11(c)(3)
discussed above. Therefore, he is approving the proposed amendment and
removing the pertinent portion of the program condition.
4. Award of Costs and Expenses: General [W.S. 35-11-437(f)]
Wyoming Enrolled Act No. 4 revises W.S. 35-11-437(f) by replacing
the term ``director'' in the phrases ``as determined by the director''
and ``as the court or director deems proper'' with the term
``council.''
As discussed in finding 1 of the January 24, 1994, Federal Register
document (59 FR 3514), the Secretary did not approve W.S. 35-11-437(f)
to the extent that it referred to ``the Director'' rather than ``the
Council'' (the State's administrative review entity) because he found
it to be inconsistent with 43 CFR 4.1291. In addition, he modified the
condition of program approval at 30 CFR 950.11(c) by adding a paragraph
(4), which required that Wyoming revise its statute to clarify that,
with respect to administrative review proceedings, 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.
The Secretary finds that Wyoming's revisions to W.S. 35-11-437(f)
satisfy the requirements of 30 CFR 950.11(c)(4). Therefore, he is
approving the proposed amendment and removing the pertinent portion of
the condition of program approval.
5. Award of Costs and Expenses: Requirement for Establishment of
Existence of Violation [W.S. 35-11-437(f)(iii)]
Wyoming Enrolled Act No. 4 repeals W.S. 35-11-437(f)(iii), which
allowed 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.
As discussed in finding 5 of the January 24, 1994, Federal Register
decision document (59 FR 3516), the Secretary did not approve W.S. 35-
11-437(f)(iii) because he found it to be inconsistent with section
525(e) of SMCRA and the Federal regulations at 43 CFR 4.1294(b). In
addition, he modified the condition of program approval at 30 CFR
950.11(c) by adding a paragraph (5), which required that Wyoming revise
its statute to eliminate the requirement that the person establish the
existence of a specific violation of applicable statute or rule as a
prerequisite for awards from the State.
The Secretary finds that Wyoming's repeal of W.S. 35-11-437(f)(iii)
satisfies the requirements of 30 CFR 950.11(c)(5). Therefore, he is
approving the proposed amendment and removing the pertinent portion of
the condition of program approval.
IV. Summary and Disposition of Comments
Public Comments
OSM announced receipt of the April 13, 1994, submittal in the May
2, 1994, Federal Register (59 FR 22571), and, in the same document,
opened the public comment period and provided opportunity for a public
hearing on the substantive adequacy of the April 13, 1994, submittal.
The public comment period closed on June 1, 1994. A public hearing was
not held because no one requested an opportunity to testify.
Written comments were received from the Powder River Basin Resource
Council (PRBRC) (Administrative Record No. WY-27-12). A summary of
these comments and their disposition is set forth below:
1. PRBRC expressed concern that the wording of the phrase ``may be
assessed against either party as the court or the council deems
proper'' in W.S. 35-11-437(f) is too broad. The commenter stated that
it should be limited by adding the clause ``in conformity with 43 CFR
4.1290 through 4.1295.'' In addition, PRBRC stated that the phrase
``and shall 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'' should be inserted after ``in accordance with P.L. 95-
87'' in W.S. 35-11-437(f) to clarify the classes of actions in
connection with which participants would be eligible for awards of
costs and expenses.
The Secretary does not agree that the suggested additional language
is either necessary or proper. The statutory language adopted by
Wyoming is substantively identical to and therefore consistent with
section 525(e) of SMCRA, which also contains an unmodified ``deems
proper'' standard. Furthermore, the Wyoming Department of Environmental
Quality's Rules of Practice and Procedures contain counterparts to 43
CFR 4.1290 through 4.1295. On January 24, 1994, OSM approved these
Wyoming Rules as being consistent with the Federal rules cited by the
commenter (see 59 3515). Therefore, no further statutory revisions are
needed.
2. PRBRC opposes deletion of the word ``administrative'' in the
phrase ``shall apply only to administrative contested case
proceedings'' in W.S. 35-11-437(f). The commenter argues that the term
``contested case'' should be deleted instead.
The Secretary does not agree. As discussed in finding 2 of the
January 24, 1994, decision document (59 FR 3515), the Secretary found
use of the term ``contested case'' to be consistent with section 525(e)
of SMCRA and its implementing regulations, as interpreted by case law.
Deletion of the adjective ``administrative'' merely eliminates a
redundancy since Wyoming's Administrative Procedure Act, at W.S. 16-3-
101(b)(ii), effectively defines ``contested case'' as an administrative
proceeding other than rulemaking. Finally, the January 24, 1994,
decision document states that the Secretary's approval is predicated
upon Wyoming's interpretation of the term contested case as including
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.
Therefore, there is no need to make the changes sought by the
commenter.
3. PRBRC expressed concern that the clause ``as the law is worded
on August 3, 1977'', which modifies the phrase ``in accordance with
P.L. 95-87'' in W.S. 35-11-437(f), may cause the State law to become
less stringent than SMCRA as the Act evolves. The Secretary finds that
this concern is misplaced. Under 30 CFR 732.17(d), the Director of OSM
must promptly notify the State of any changes in SMCRA that will
require an amendment to the State program.
4. PRBRC objected to the provision in W.S. 35-11-437(f) which
specifies that a person who did not initiate a 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. The commenter stated that this
provision could cause confusion and could be interpreted as being
additive to the requirement that the person make a substantial
contribution to a full and fair determination of the issues. As
discussed in finding 4 of the January 24, 1994, decision document, the
Secretary previously approved this provision, noting that the
``separate and distinct'' requirement is an implicit component of the
``substantial contribution'' requirement, and is not inconsistent with
section 525(e) of SMCRA or its implementing regulations (see 59 FR
3516).
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 submittal.
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 submittal 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.). None of the
provisions of this proposed amendment relate to air or water quality
standards. Hence, no concurrence is needed.
V. Secretary's Decision
Based on the above findings, the Secretary is approving Wyoming's
proposed program amendment as submitted on April 13, 1994. Because this
amendment fully satisfies the requirements of the condition of program
approval at 30 CFR 950.11(c), he is also removing this 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.
VI. 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 subsections
(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 the 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 of 1969 (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: October 14, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T, part 950 of the Code of Federal Regulations is amended as
set forth below.
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 950.11 [Removed]
2. Section 950.11 is removed.
3. Section 950.15 is amended by adding paragraph (u) to read as
follows:
Sec. 950.15 Approval of regulatory program amendments.
* * * * *
(u) The following amendment, as submitted on April 13, 1994, is
approved effective on October 21, 1994: Wyoming Enrolled Act No. 4
(1994 Budget Session), which concerns the award of costs and expenses
incurred in connection with administrative and judicial review
proceedings. The Act contains revisions to section 35-11-437(f) of the
Wyoming Statutes and repeals section 35-11-437(g).
[FR Doc. 94-26152 Filed 10-20-94; 8:45 am]
BILLING CODE 4310-05-M
