[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6509-6511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3670]
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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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