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 removal of condition of

program approval.

-----------------------------------------------------------------------

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