7708 - Costs for mining proceedings. SUBPART C. IMMUNITY

     § 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.