PART VI
SANCTIONS AND REMEDIES
Subpart
A. General Provisions
C. Immunity
Enactment. Part VI was added December 15, 1999, P.L.949,
No.68, effective December 31, 1999.
SUBPART A
GENERAL PROVISIONS
Chapter
77. Costs and Fees
Enactment. Subpart A was added December 20, 2000, P.L.980,
No.138, effective in 60 days.
CHAPTER 77
COSTS AND FEES
Sec.
7707. Participation in environmental law or regulation.
7708. Costs for mining proceedings.
Enactment. Chapter 77 was added December 20, 2000, P.L.980,
No.138, effective in 60 days, unless otherwise noted.
Special Provisions in Appendix. See the preamble of Act 138
of 2000 in the appendix to this title for special provisions
relating to legislative findings and declarations.
§ 7707. Participation in environmental law or regulation.
A person that successfully defends against an action under
Chapter 83 (relating to participation in environmental law or
regulation) shall be awarded reasonable attorney fees and the
costs of litigation. If the person prevails in part, the court
may make a full award or a proportionate award.
§ 7708. Costs for mining proceedings.
(a) Purpose.--This section establishes costs and fees
available in proceedings involving coal mining activities. The
purpose of this section is to provide costs and fees to the same
extent of section 525(e) of the Surface Mining Control and
Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. § 1201 et
seq.) and the regulations promulgated pursuant thereto. It is
hereby determined that it is in the public interest for the
Commonwealth to maintain primary jurisdiction over the
enforcement and administration of the Surface Mining Control and
Reclamation Act of 1977 and that the purpose of this section is
to maintain primary jurisdiction over coal mining in this
Commonwealth but in no event to authorize standards which are
more stringent than Federal standards for the award of costs and
fees.
(b) General rule.--Any party may file a petition for award
of costs and fees reasonably incurred as a result of that
party's participation in any proceeding involving coal mining
activities which results in a final adjudication being issued by
the Environmental Hearing Board or a final order being issued by
an appellate court.
(c) Recipients of awards.--Appropriate costs and fees
incurred for a proceeding concerning coal mining activities may
be awarded:
(1) To any party from the permittee if:
(i) The party initiates or participates in any
proceeding reviewing enforcement actions upon a finding
that a violation of a Commonwealth coal mining act,
regulation or permit has occurred or that an imminent
hazard existed.
(ii) The Environmental Hearing Board determines that
the party made a substantial contribution to the full and
fair determination of the issues.
Except that the contribution of a party who did not initiate
a proceeding shall be separate and distinct from the
contribution made by a party initiating the proceeding.
(2) To any party, other than a permittee or his
representative, from the department if that party:
(i) Initiates or participates in any proceeding
concerning coal mining activities.
(ii) Prevails in whole or in part, achieving at
least some degree of success on the merits.
Upon a finding that the party made a substantial contribution
to a full and fair determination of the issues.
(3) To a permittee from the department when the
permittee demonstrates that the department in a matter
concerning coal mining activities issued an order of
cessation, a compliance order or an order to show cause why a
permit should not be suspended or revoked, in bad faith and
for the purpose of harassing or embarrassing the permittee.
(4) To a permittee from any party where the permittee
demonstrates that the party, in bad faith and for the purpose
of harassing or embarrassing the permittee:
(i) initiated a proceeding under one or more of the
coal mining acts or the regulations promulgated pursuant
to any of those acts concerning coal mining activities;
or
(ii) participated in such a proceeding in bad faith
for the purpose of harassing or embarrassing the
permittee.
(d) Time for filing.--The petition for an award of costs and
fees shall be filed with the Environmental Hearing Board within
30 days of the date an adjudication of the Environmental Hearing
Board becomes final.
(e) Contents of petition.--A petition filed under this
section shall include the name of the party from whom costs and
fees are sought, and the following shall be submitted in support
of the petition:
(1) An affidavit setting forth in detail all reasonable
costs and fees reasonably incurred for or in connection with
the party's participation in the proceeding.
(2) Receipts or other evidence of such costs and fees.
(3) Where attorney fees are claimed, evidence concerning
the hours expended on the case, the customary commercial rate
of payment for such services in the area and the experience,
reputation and ability of the individual or individuals
performing the services.
(f) Answer.--Any party shall have 30 days from service of
the petition within which to file an answer to such petition.
(g) Exclusive remedy.--Except for section 601 of the act of
June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
Law, section 18.3 of the act of May 31, 1945 (P.L.1198, No.418),
known as the Surface Mining Conservation and Reclamation Act,
section 13 of the act of April 27, 1966 (1st Sp.Sess., P.L.31,
No.1), known as The Bituminous Mine Subsidence and Land
Conservation Act, and section 13 of the act of September 24,
1968 (P.L.1040, No.318), known as the Coal Refuse Disposal
Control Act, this section shall be the exclusive remedy for the
awarding of costs and fees in proceedings involving coal mining
activities.
(h) Definitions.--The following words and phrases when used
in this section shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Coal mining activities." The extraction of coal from the
earth, waste or stockpiles, pits or banks by removing the strata
or material which overlies or is above or between them or
otherwise exposing and retrieving them from the surface,
including, but not limited to, strip mining, auger mining,
dredging, quarrying and leaching and all surface activity
connected with surface or underground coal mining, including,
but not limited to, exploration, site preparation, coal
processing or cleaning, coal refuse disposal, entry, tunnel,
drift, slope, shaft and borehole drilling and construction, road
construction, use, maintenance and reclamation, water supply
restoration or replacement, repair or compensation for damages
to structures caused by underground coal mining and all
activities related thereto.
"Coal mining acts." The provisions of the act of June 22,
1937 (P.L.1987, No.394), known as The Clean Streams Law, the act
of May 31, 1945 (P.L.1198, No.418), known as the Surface Mining
Conservation and Reclamation Act, the act of April 27, 1966 (1st
Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence
and Land Conservation Act, and the act of September 24, 1968
(P.L.1040, No.318), known as the Coal Refuse Disposal Control
Act, which govern coal mining or activities related to coal
mining.
"Costs and fees." All reasonable costs and expenses,
including attorney fees and expert witness fees, reasonably
incurred as a result of participation in a proceeding involving
coal mining activities.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Proceeding." Appeals of final Department of Environmental
Protection actions before the Environmental Hearing Board and
judicial review of Environmental Hearing Board adjudications.
Effective Date. Section 4(1)(i) of Act 138 of 2000 provided
that section 7708 shall take effect immediately.
Applicability. Section 3 of Act 138 of 2000 provided that
section 7708 shall apply to all proceedings and petitions for
costs and fees filed after the effective date of Act 138.
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