[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Notices]
[Pages 25266-25268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12165]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33407]
Dakota, Minnesota & Eastern Railroad Corporation Construction
Into the Powder River Basin 1
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\1\ This case was formerly entitled Dakota, Minnesota & Eastern
Railroad Corporation--Construction and Operation--in Campbell,
Converse, Niobrara, and Weston Counties, WY, Custer, Fall River,
Jackson, and Pennington Counties, SD, and Blue Earth, Nicollet, and
Steele Counties, MN. We have shortened the title for the sake of
simplicity.
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AGENCY: Surface Transportation Board, DOT.
ACTION: Notice of issuance of procedural schedule.
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SUMMARY: The Board has received public comments on the proposed
procedural schedule for issuing a decision on the transportation merits
of the application and applicant's reply to those comments, and the
Board is issuing a final procedural schedule. This schedule provides
for issuance of a decision within 180 days of the effective date of
this decision that will address the transportation issues relating to
this construction application and whether the proposal satisfies the
criteria of 49 U.S.C. 10901. Any approval would be conditioned upon
completion of the environmental review process and consideration of
environmental issues, which would be considered in a final decision on
whether to authorize the construction.
DATES: The effective date of this decision is May 7, 1998. Pleadings
must be filed in accordance with the attached schedule. All filings,
except notices of intent to participate, must be concurrently served on
all parties of record and must be accompanied by a certificate of
service.
ADDRESSES: Send an original and 10 copies of all pleadings referring to
STB Finance Docket No. 33407 to: Surface Transportation Board, Office
of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington,
DC 20423. To permit concurrent service of pleadings on all parties of
record, a service list containing the names and addresses of all
parties of record will be issued by the Board in a subsequent notice.
[[Page 25267]]
FOR FURTHER INFORMATION CONTACT: Joseph H . Dettmar, (202) 565-1600.
[TDD for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: By decision served March 11, 1998, as
corrected, the Board published notice of a construction and operation
application filed by the Dakota, Minnesota & Eastern Railroad
Corporation (DM&E) 2 and requested comments on a procedural
schedule based on one proposed by DM&E for consideration of the
transportation issues regarding the application. 3 That
decision also required DM&E to cause to be published notices: (1)
Advising that comments would not be due until the Board establishes a
procedural schedule; and (2) after a schedule has been adopted by the
Board, setting forth the schedule, including the due date for comments
on the merits of the proposed transaction.
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\2\ DM&E seeks authority to construct and operate 280.09 miles
of new railroad line, which would extend DM&E's existing rail lines
into the Powder River Basin coal fields in northeastern Wyoming, and
DM&E also plans several related projects. Notice of the application
was published in the Federal Register on March 13, 1998 (63 FR
12576).
\3\ DM&E's proposed schedule also would have covered the
carrying out of the environmental review process. Our March 11, 1998
decision found that it would be premature to establish any sort of
environmental review schedule, but directed our Section of
Environmental Analysis (SEA) to initiate the environmental review
process. On March 27, 1998, SEA published a notice of intent to
prepare an Environmental Impact Statement (EIS), scheduling agency
and public scoping meetings between April 29 and June 30, 1998.
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We received over two hundred comments on the proposed procedural
schedule. Comments were filed by landowners, environmental groups,
shipper organizations, shippers and receivers (including electric
utilities), railroads, government entities, and rail labor unions. We
have reviewed all of these comments but, in light of their number, will
not mention each comment individually here.
For the most part, the parties opposing the proposed schedule state
that the original 35-day comment period is insufficient. One group of
similar letters 4 (over 50) asks that we allow comments
throughout the EIS process. The other time period mentioned most
frequently is an increase in the initial public comment period to 180
days. There are also a few suggestions for comment periods of up to 400
days.
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\4\ The second largest group of similar letters (over 30) does
not specifically address the procedural schedule; rather, these
letters argue against conditional approval.
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The rationale for extending the time period for submitting comments
is, generally, that the proposal is extensive and that more time is
needed to study it and to seek help in asserting the parties' positions
in opposition. These parties argue that copies of the application are
not readily available to many landowners, and that the application set
out on the Internet is incomplete. 5 These parties also
claim that DM&E has had years to prepare its arguments and that they
deserve time to counter these arguments and fully understand the public
convenience and necessity claims of DM&E. There are also numerous
requests for local hearings, contentions that consideration of the
transportation criteria in 49 U.S.C. 10901 prior to completion of the
analysis of the potential environmental impacts is not appropriate, and
assertions that there is no public need for another rail line to serve
the Powder River Basin.
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\5\ DM&E placed a copy of the application on the Internet at
``WWW.DMERAIL.COM.''
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There is one specific proposal for an alternative procedural
schedule. It is offered by the 777 Ranch. 6 This proposal
would significantly extend the due dates for the various pleadings
7 and ultimately postpone the issuance of a decision on
transportation issues by slightly more than 9 months, for a total of
approximately 15 months until the decision on the transportation issues
is made.
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\6\ The 777 Ranch and the Mid-States Coalition for Progress list
the same PO box and phone number, and their pleadings are quite
similar. The SMS Ranch Partnership also submitted essentially
identical comments.
\7\ The 777 Ranch would make these changes to the proposed
schedule (where P signifies the date of this decision): comments due
from P + 35 to P + 180; STB decision setting modified procedure/oral
hearing from P + 70 to P + 215; opposing evidence and argument from
P + 115 to P + 395; and STB decision from P + 180 to P + 460.
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Numerous parties support the 180 day schedule.8 These
parties emphasize that this schedule is reasonable and provides
adequate time for submitting evidence and for informed decision making
by the Board.
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\8\ These parties also frequently mention their support for the
construction project and request expedited consideration of the
environmental issues.
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In support of the proposed schedule, DM&E argues that many of the
opposing comments appear to be from parties ``implacably'' against the
project who see delay as a desirable end in itself. DM&E also claims
that many of the opposing comments are directed to environmental
concerns, while others address the merits of the proposal rather than
the amount of time needed to provide adequate opportunity for public
participation and for development of a sufficient record on the
transportation merits of the application. DM&E adds that it has
attempted to ensure the broad availability of the application and that
it went well beyond Board regulations in this regard.
Turning to the specific requests for lengthening the proposed
schedule, DM&E notes that the commenters apparently did not take into
account that, after the initial 35-day comment period, there would be a
further 80-day period in which to submit transportation evidence and
argument in opposition. In addition, DM&E points out that, even before
a specific schedule is adopted, interested parties will have already
had nearly 2 months since the application was filed to begin
preparation of their transportation comments.
We have reviewed all the comments received on the proposed
procedural schedule and are aware of the concerns parties have raised
regarding the amount of time necessary to prepare their cases as well
as the desire of DM&E to have an expedited schedule. Balancing these
competing concerns, and with fairness to all parties in mind, we have
decided to adopt the proposed 180-day procedural schedule for
consideration of transportation issues. This schedule will ensure that
all parties are accorded due process. It will allow for adequate public
participation and the development of a sufficient record on which to
consider the transportation implications of applicant's construction
proposal under 49 U.S.C. 10901. As we explained in our previous
decision, any approval granted would be conditioned upon consideration
of the environmental impacts of the proposed construction. Thus, we
will issue a subsequent decision after completion of the EIS process,
and only at that point would we allow construction to begin, if
appropriate, based on a consideration of the potential environmental
impacts of the proposed transaction. The courts have found that it does
not violate the environmental laws for an agency to conditionally
approve an action before the completion of environmental review. City
of Grapevine v. DOT, 17 F.3d 1502 (D.C. Cir. 1984). See generally
Missouri Mining Inc. v. ICC, 33 F.3d 980 (8th Cir. 1994) (affirming
construction authorization that had first been conditionally granted).
Although numerous parties have requested that we extend the various
time periods set forth in the proposed schedule, none of these requests
shows any specific need for additional time in order to address
transportation issues under the statutory standards of section 10901.
We believe the proposed schedule, which allows almost 4 months (a total
of 115 days) in addition
[[Page 25268]]
to the time already elapsed since the application was filed, affords
ample opportunity to file evidence and argument in opposition to the
application.
In addition, we note that many of the pleadings we received in
response to our request for comments on the procedural schedule for
consideration of transportation issues instead raise concerns with
environmental issues. As noted, we will separately address
environmental issues in a subsequent decision after completion of the
EIS process. Other comments are directed more to the transportation
merits of the application than the procedural schedule.
As mentioned, our previous decision required DM&E to cause to be
published new notices setting forth the schedule we are adopting here
and certifying to us that it has done so. We are reiterating that
requirement here.
In addition to setting forth the procedural schedule, the new
notices must clearly set forth the filing requirements we established
here, which we are modifying slightly from those originally
contemplated. These filing requirements are: first, anyone who intends
to file comments in this proceeding and to participate fully as a party
of record (POR) must file with the Secretary of the Board an original
and 10 copies of a notice of intent to participate in the proceeding by
May 27, 1998. The Board will then issue a list of those persons who
have given notice of their intent to participate.9All
documents (including comments) filed under the procedural schedule must
be served on each person identified on this service list as a POR and
each person making a filing must certify to the Secretary of the Board
that he or she has done so. Persons not participating as a POR may
obtain copies of pleadings through the Board's copy contractor, DC News
& Data, Inc., 1925 K Street, N.W., Suite 210, Washington, DC 20006.
Telephone: (202) 289-4357. [Assistance for the hearing impaired is
available through TDD Services (202) 565-1695.] Second, so that all
PORs may have the benefit of receiving all comments, we are requiring
that, in order to be considered, any previously submitted comments
addressing the transportation merits of the proposed construction must
be resubmitted and properly served on all PORs once we issue the
service list. Previously submitted transportation comments will not be
considered unless resubmitted and served. We recognize that this will
create duplicate pleadings in some circumstances, but feel it is
necessary to ensure complete dissemination of all comments.
10
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\9\ The Office of the Secretary will start compiling the
official service list in this proceeding after service of this
decision adopting a procedural schedule. Persons named on any
earlier service list will not automatically be placed on the
official service list for this proceeding. Therefore, any person who
wishes to be a POR must file a notice of intent to participate by
May 27, 1998.
\10\ We emphasize that interested persons that do not wish to
participate formally in this phase of the proceeding addressing the
transportation merits of the application need not become a POR to
participate fully in the environmental phase of the proceeding. We
note that cross service of comments is not ordinarily required in
the environmental review process.
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Board decisions and notices are available on our website at
``WWW.STB.DOT.GOV.''
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: April 30, 1998.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
Procedural Schedule
In the following schedule, the term ``P'' designates the date that
the Board issues this procedural schedule and ``P + n'' means ``n''
days following that date.
P--Procedural schedule established by the Board.
P+7--Due date for publication by DM&E of newspaper notice announcing
the procedural schedule.
P+20--Due date for notices of intent to participate as a party of
record
P+35--Due date for written comments on transportation aspects of the
Application.
P+40--Due date for DM&E's replies to written comments on transportation
aspects of the Application.
P+70--Board decision ordering hearing under modified procedures.
P+115--Due date for evidence and argument in opposition to the
transportation aspects of the Application.
P+135--Due date for DM&E's reply evidence and argument in support of
the transportation aspects of the Application.
P+180 (or earlier)--Service of preliminary decision on whether the
transportation criteria of section 10901 have been met.
[FR Doc. 98-12165 Filed 5-6-98; 8:45 am]
BILLING CODE 4915-00-P
