[Federal Register Volume 59, Number 15 (Monday, January 24, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-1420] Federal Register / Vol. 59, No. 15 / Monday, January 24, 1994 / [[Page Unknown]] [Federal Register: January 24, 1994] VOL. 59, NO. 15 Monday, January 24, 1994 ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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