Wyoming Permanent Regulatory Program

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