Colorado Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 906

[SPATS No. CO-001-FOR]

Colorado Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment and removal of condition of

program approval.

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SUMMARY: The Secretary of Interior is announcing the approval of an

amendment to the Colorado regulatory program (hereinafter referred to

as the ``Colorado program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA) and the removal of the remaining

condition of program approval. The Colorado revisions pertain to the

recovery of costs and expenses, including attorney's fees, incurred in

connection with administrative and judicial review proceedings under

the Colorado program. The amendment revised the Colorado program to be

consistent with SMCRA and the corresponding Federal regulations.

EFFECTIVE DATE: February 21, 1996.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telephone: (303) 672-5524.

SUPPLEMENTARY INFORMATION:

I. Background on the Colorado Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the Colorado program. General background information on the

Colorado program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Colorado program can

be found in the December 15, 1980, Federal Register (45 FR 82173).

Subsequent actions concerning Colorado's program and program amendments

can be found at 30 CFR 906.11, 906.15, 906.16, and 906.30.

II. Proposed Amendment

By letter dated November 20, 1995, Colorado submitted a proposed

amendment to its program (administrative record No. CO-675) pursuant to

SMCRA (30 U.S.C. 1201 et seq.). Colorado submitted the proposed

amendment in response to the condition of program approval at 30 CFR

906.11(mm). Colorado proposed to revise 2 CCR 407-2, Rules 5.03.6 and

5.03.6(4)(e), concerning costs, expenses, and attorney's fees.

OSM announced receipt of the proposed amendment in the December 7,

1995, Federal Register (60 FR 62789), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. CO-675-2).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on January 8, 1996.

III. Secretary's Findings

As discussed below, the Secretary, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by Colorado on November 20, 1995, is no less effective than

the corresponding Federal regulations and no less stringent than SMCRA.

Accordingly, the Secretary approves the proposed amendment.

1. Rule 5.03.6, Awarding of Costs, Expenses, and Attorney Fees Incurred

in Seeking an Award

Existing Rule 5.03.6 authorizes the Colorado Mined Land Reclamation

Board (Board), under certain circumstances, to assess and award costs,

expenses, and attorney fees to parties of Board proceedings resulting

in Board decisions and orders or to parties of administrative

proceedings under the Colorado Surface Coal Mining Reclamation Act. In

response to the condition of original program approval at 30 CFR

906.11(mm)(1)(ii) (finding No. 4(k), 45 FR 82173, 82194, December 15,

1980), Colorado proposed to revise Rule 5.03.6 to specify that the

costs, expenses, and attorney fees to be awarded to a requesting party

are those incurred by the party seeking the award.

Section 525(e) of SMCRA allows for an award of a sum equal to the

aggregate amount of all costs, expenses, and attorney fees determined

by the Secretary of the Interior to have been reasonably incurred by a

person for or in connection with his participation in administrative

proceedings. In addition, the Federal regulations at 43 CFR 4.1295(b)

require that an award may include all costs and expenses, including

attorneys' fees and expert witness fees, reasonably incurred in seeking

the award.

Proposed Rule 5.03.6 differs from 43 CFR 4.1295(b) only in that it

does not specifically address expert witness fees. However, this is not

a substantive difference because the ``costs and expenses'' requirement

of the proposed rule includes such fees. For this reason, the Secretary

finds that Colorado's proposed revision to Rule 5.03.6, which requires

that awarded costs, expenses, and attorney fees be restricted to those

incurred by the requesting party in seeking the award, is no less

stringent than section 525(e) of SMCRA, and no less effective than the

corresponding requirement of the corresponding Federal regulation at 43

CFR 4.1295(b). The Secretary approves the revised rule and removes the

condition of original program approval codified at 30 CFR

906.11(mm)(1)(ii).

2. Rule 5.03.6(4), Awarding Costs, Expenses, and Attorney Fees From the

Division to Administrative Proceeding Participants Other Than the

Permittee

In response to the condition of original program approval at 30 CFR

906.11(mm)(2) (finding No. 4(k), 45 FR 82173, 82194, December 15,

1980), Colorado proposed to add newly-created paragraph (e) to Rule

5.03.6(4), which would allow appropriate costs and expenses, including

attorneys' fees, to be awarded from the Colorado Department of Natural

Resources, Division of Minerals and Geology (Division) to participants,

other than the permittee or his representative, in ``administrative

proceedings'' under the Colorado Surface Coal Mining Reclamation Act

(Act).

The corresponding Federal regulation at 43 CFR 4.1294(b) allows

appropriate costs and expenses, including attorneys' fees, to be

awarded from OSM to participants, other than a permittee or his

representative, in ``any proceeding'' under SMCRA. ``Any proceeding''

includes both administrative and judicial proceedings.

Proposed Rule 5.03.6(4)(e) differs from 43 CFR 4.1294(b) in that it

restricts the awarding of costs, expenses, and attorneys' fees to those

incurred in

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administrative proceedings, rather than to those incurred in both

administrative and judicial proceedings. However, Colorado's statutory

language at section 34-33-128(4) of the Act, concerning judicial

review, allows the court, at the request of any party to a proceeding

under that section, to assess such costs and expenses against any party

as the court deems just and proper. Therefore, proposed Rule

5.03.6(4)(e) and section 34-33-128(4) of the Act, taken together, allow

for appropriate costs and expenses, including attorneys' fees, to be

awarded from the Division to participants in both administrative and

judicial proceedings under the Act.

For this reason, the Secretary finds that proposed Rule

5.03.6(4)(e), when considered along with section 34-33-128(4) of the

Act, is consistent with and no less effective than the Federal

regulation at 43 CFR 4.1294(b). The Secretary approves the revised rule

and removes the condition of original program approval codified at 30

CFR 906.11(mm)(2).

3. No Colorado Counterpart Rules, Awarding Costs, Expenses, and

Attorney Fees From the Division to Administrative Proceeding

Participants Other Than the Permittee

On November 12, 1993 (administrative record No. CO-582), Colorado

requested that OSM conduct an informal review regarding the sufficiency

of Colorado's rules in addressing condition 30 CFR 906.11(mm). In a

letter dated December 22, 1993 (administrative record No. CO-599), OSM

notified Colorado that, upon further review and analysis, OSM

determined that conditions 30 CFR 906.11(1) (i) and (iii) are invalid

and not applicable to the Colorado program. For the reasons discussed

below, the Secretary is now removing the conditions of original program

approval codified at 30 CFR 906.11(mm)(1) (i) and (iii) that it placed

on the Colorado program on December 15, 1980 (finding No. 4(k), 45 FR

82173, 82194).

a. Awarding the costs and expenses regarding alleged discriminatory

acts. At 30 CFR 906.11(mm)(1)(i), OSM required Colorado to ``submit * *

* fully implemented regulations containing provisions for * * * [c]osts

and expenses regarding discriminatory acts, pursuant to 30 CFR Part

830, as in 43 CFR 4.1294(a)(2).''

However, State programs are not required to include counterparts to

the employee protection provisions of 30 CFR Part 865 (formerly Part

830) and, as such, there is no need for a State provision allowing the

award of costs and expenses incurred in connection with proceedings

pursuant to these rules. Accordingly, the lack of a State counterpart

provision in the Colorado permanent program to the Federal regulation

at 43 CFR 4.1294 regarding employee protection is not inconsistent with

the Federal regulatory program. For this reason, the Secretary removes

the condition of original program approval codified at 30 CFR

906.11(mm)(1)(i).

b. Right to appeal costs and expenses awarded in an administrative

proceeding. At 30 CFR 906.11(mm)(1)(iii), OSM required Colorado to

``submit * * * fully implemented regulations containing provisions for

* * * the administrative appeal of a decision as in 43 CFR 4.1296.''

OSM has determined that condition 30 CFR 906.11(mm)(1)(iii) is

inappropriate and not applicable to the Colorado permanent program

because of the differences that exists between the Colorado and Federal

administrative review processes. The Federal administrative review

process consists of two tiers of review, which are set forth at section

525(e) of SMCRA. They consist of review by the Secretary of the

Interior, and review under 43 CFR 4.1290 through 4.1296 of the Federal

regulations, which consists of review of the Secretary of the

Interior's decisions by either the Interior Board of Land Appeals

(IBLA) or an administrative law judge. Conversely, the only level of

administrative review and only administrative review body under the

Colorado program, which is set forth at Rule 5.03.6, is the Colorado

Mined Land Reclamation Board (Board). Thus, a State program counterpart

to 43 CFR 4.1296 is unnecessary. For this reason, the Secretary removes

the condition of original program approval codified at 30 CFR

906.11(mm)(1)(iii).

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Colorado program.

The U.S. Forest Service responded on December 15, 1995, that it had

no comments on the proposed amendment (administrative record No. CO-

675-3).

The U.S. Natural Resources Conservation Service responded on

December 20 and 21, 1995, that it had no comments on the proposed

amendment (administrative record No. CO-675-4).

The U.S. Army Corps of Engineers responded on December 27, 1995,

that it had found the proposed amendment to be satisfactory

(administrative record No. CO-675-5).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed 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 revisions that Colorado proposed to make in its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. CO-675-1). It

did not respond to OSM's request.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

CO-675-1). Neither SHPO nor ACHP responded to OSM's request.

V. Secretary's Decision

Based on the above findings, the Secretary approves Colorado's

proposed amendment as submitted on November 20, 1995. Because this

amendment fully satisfies the requirements of the condition of program

approval at 30 CFR 906.11(mm), the Secretary is also removing this

condition.

The Secretary, as discussed in: finding No. 1, approves Rule

5.03.6, concerning awarding of costs, expenses, and attorney fees

incurred in seeking an award and removes the condition of program

approval at 30 CFR 906.11(mm)(1)(ii); and finding No. 2, approves Rule

5.03.6(4)(e), awarding costs, expenses, and attorney fees from the

Division to administrative proceeding participants other than the

permittee and removes the condition of

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program approval at 30 CFR 906.11(mm)(2); and finding No. 3, removes

the conditions of program approval at 30 CFR 906.11(mm)(l) (i) and

(iii) because there are no requirements for State counterparts to the

Federal regulations concerning (1) costs and expenses regarding

discriminatory acts and (2) the administrative review process.

The Secretary approves the rules as proposed by Colorado with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 906.11 and 906.15, codifying

decisions concerning the Colorado 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

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. 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 1255) 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 other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. 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)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. 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 that 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. Accordingly, 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 906

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 13, 1996.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

For the reasons set out in the preamble, Title 30, chapter VII,

subchapter T, part 906 of the Code of Federal Regulations is amended as

set forth below:

PART 906--COLORADO

1. The authority citation for part 906 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

Sec. 906.11 [Removed]

2. Section 906.11 is removed.

3. Section 906.15 is amended by adding paragraph (t) to read as

follows:

Sec. 906.15 Approval of regulatory program amendments.

* * * * *

(t) The following rules, as submitted to OSM on November 20, 1995,

are approved effective February 21, 1996:

Awarding of costs, expenses, and attorney fees incurred in seeking

an award--Rule 5.03.6;

Awarding costs, expenses, and attorney fees from the Division of

Minerals and Geology to administrative proceeding participants other

than the permittee--Rule 5.03.6(4)(e).

[FR Doc. 96-3670 Filed 2-20-96; 8:45 am]

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