[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 

[[Page 6510]]
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 

[[Page 6511]]
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]
BILLING CODE 4310-05-M