[Federal Register Volume 63, Number 132 (Friday, July 10, 1998)]
[Notices]
[Pages 37442-37445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18455]
[[Page 37442]]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Finance Docket No. 30186 (Sub-No. 3)]
Tongue River Railroad Company, Construction and Operation of the
Western Alignment in Rosebud and Big Horn Counties, Montana
AGENCY: Surface Transportation Board.
ACTION: Notice of Intent to Prepare a Supplement to the Final
Environmental Impact Statement and Request for Comments.
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SUMMARY: On April 27, 1998, the Tongue River Railroad Company (TRRC)
filed an application with the Surface Transportation Board (Board)
under 49 U.S.C. 10901 and 49 CFR 1150.1-10 seeking authority to
construct and operate a 17.3-mile line of railroad in Rosebud and Big
Horn Counties, Montana, known as the ``Western Alignment.'' The line
that is the subject of this application is an alternative routing for
the portion of the 41-mile Ashland to Decker, Montana rail line that
was approved by the Board on November 8, 1996 in Finance Docket No.
30186 (Sub-No. 2), referred to as the ``Four Mile Creek Alternative.''
1
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\1\ Petitions for review of the November 8, 1996 decision were
filed in the Ninth Circuit in Northern Plains Resource Council, Inc.
Et. Al. v. STB, No. 97-70037 (filed Jan. 7, 1997) (NPRC). The court
proceedings are being held in abeyance pending the conclusion of
this proceeding.
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To evaluate and consider the potential environmental impacts that
might result from the construction and operation of this new alignment,
the Board's Section of Environmental Analysis (SEA) will prepare a
Supplement to the Final Environmental Impact Statement in Finance
Docket No. 30186 (Sub-No. 2) (Supplement). Comments are requested from
interested parties regarding the scope of the environmental issues
associated with the proposed construction and operation of the Western
Alignment that should be addressed in the Supplement.
DATES: Written comments on the scope of potential environmental issues
are due August 24, 1998 (45 days). TRRC may reply within 15 days
thereafter.
ADDRESSES: Send an original and 10 copies of comments referring to STB
Finance Docket No. 30186(Sub-No. 3) to: Surface Transportation Board,
Office of the Secretary, Case Control Unit, 1925 K Street, NW,
Washington, DC 20423-0001, Attention: Dana G. White, Section of
Environmental Analysis.
FOR FURTHER INFORMATION CONTACT: Dana White, (202) 565-1552 (TDD for
the hearing impaired: (202) 565-1695).
SUPPLEMENTARY INFORMATION:
Background
In its original application filed on June 2, 1983 in Finance Docket
No. 30186 and Finance Docket No. 30186 (Sub-No. 1), TRRC sought
approval from the Interstate Commerce Commission (ICC, now the Surface
Transportation Board or Board) for the construction and operation of 89
miles of railroad between Miles City, MT and two termini located near
Ashland, MT (Tongue River I). TRRC explained that the proposed rail
line would serve future coal mines in the Ashland area, and connect
with what is now the Burlington Northern and Santa Fe Railroad
Company's main line at Miles City for shipment of the coal to eastern
and western destinations. In a decision served May 9, 1986, the ICC
approved the application subject to several conditions, including
environmental mitigation conditions that were recommended in the
environmental impact statement (EIS) prepared by the ICC's
environmental staff, now the Section of Environmental Analysis (SEA).
On June 28, 1991, TRRC filed an application in Finance Docket No.
30186 (Sub-No. 2), seeking approval to construct and operate 41 miles
of railroad running south from the approved Miles City to Ashland rail
line to connect with existing rail lines serving the Decker, MT coal
mines (Tongue River II). SEA also prepared an EIS for this proceeding
and considered the potential environmental impacts associated with (1)
TRRC's preferred route,2 (2) the Four Mile Creek
Alternative,3 and (3) the no-build alternative. SEA's Draft
EIS (DEIS) was served on July 17, 1992, and comments were requested.
The DEIS preliminarily recommended the Four Mile Creek Alternative
because it would avoid the environmentally sensitive Tongue River
Canyon. Because of concerns raised during the commenting process, SEA
issued a Supplement to the DEIS (SDEIS) on March 17, 1994. In the
SDEIS, SEA preliminarily concluded that the Four Mile Creek Alternative
would have more adverse environmental consequences than TRRC's
preferred route, because it would involve more land disturbance from
cut and fill, erosion, deforestation, loss of habitat, and require more
fuel consumption and cause more air pollution during operations. After
the commenting process for the SDEIS, and further analysis and
evaluation, SEA issued a Final EIS (FEIS), on April 11, 1996. In it,
SEA explained that it had concluded that the Four Mile Creek
Alternative would be the environmentally preferable construction
option. SEA developed appropriate mitigation conditions to address
potential environmental impacts if either of the two construction
alternatives were approved.
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\2\ TRRC's preferred route would have extended south from
Ashland generally paralleling the Tongue River and passed just to
the west of the Tongue River Reservoir before connecting with a line
owned by the Spring Creek Coal Company, which provides access to the
Burlington Northern and Santa Fe Railway Company rail lines. TRRC's
preferred route would have included 5 bridges and a tunnel in the
approximately 6-mile section of the Tongue River Canyon located
between the Tongue River Dam and the confluence of Four Mile Creek
and the Tongue River.
\3\ The Four Mile Creek Alternative departs from TRRC's
preferred route at the confluence of the Four Mile Creek and the
Tongue River and heads in a westerly direction, climbing at a 2.31
percent grade away from the Tongue River valley floor. The route
winds south connecting with the Spring Creek spur at the same point
as TRRC's preferred route. The Four Mile Creek Alternative thus
avoids the Tongue River Canyon and Reservoir.
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In its decision served November 8, 1996, the Board approved the
construction and operation of the Four Mile Creek Alternative, and
imposed the mitigation measures recommended in the FEIS for that route.
Additionally, the Board reopened Tongue River I for the limited purpose
of requiring TRRC to complete construction of the entire line between
Miles City and Decker within 3 years.
By petition filed July 15, 1997, TRRC sought to reopen the Board's
November 1996 decision approving the construction and operation of the
Four Mile Creek Alternative and proposed that the Board consider a new
route, the Western Alignment, for a 17-mile portion of the approved
line instead of the Four Mile Creek Alternative. The Western Alignment
would roughly parallel TRRC's preferred route, but would lie slightly
to the west of that route and the Tongue River.4 TRRC
[[Page 37443]]
asserted that the Western Alignment, while still avoiding the
environmentally sensitive Tongue River Canyon, would also eliminate the
potential economic and operational problems TRRC claimed would make the
approved Four Mile Creek Alternative economically infeasible. Further,
TRRC stated that, compared to the Four Mile Creek Alternative, the
Western Alignment would involve less land acquisition, affect fewer
land owners, and, because of the more even grade, require less fuel
consumption. However, based on additional information later filed by
TRRC (see the discussion of TRRC's Environmental Report below), it
appears that the Western Alignment could involve more earth-moving
because of the rugged terrain, could cross more streams, could need
more water during construction, and could potentially adversely affect
big game movement, particularly pronghorn movement, during operations.
In a decision served December 1, 1997, the Board denied TRRC's petition
to reopen Tongue River II but stated that TRRC could file a new
application for the Western Alignment.
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\4\ The Western Alignment would generally follow a route between
TRRC's preferred alignment and the Four Mile Creek Alternative and
would be located on uplands out of the Tongue River Canyon. Moving
south along the approved route from Ashland, the Western Alignment
would begin at a point approximately 9 miles downstream from the
confluence of the Four Mile Creek and the Tongue River. It would
then cross the Tongue River approximately 3,000 feet downstream of
the existing county road river crossing. After crossing the river,
the Western Alignment would parallel the existing Tongue River Road
for 4 miles, then separate from the county road and climb away from
the valley floor. At Four Mile Creek, the Western Alignment would
cross the county road with a fifty-foot long bridge, and run
approximately 0.07 miles west of the Hosford residence and ranch
headquarters. From Four Mile Creek, the Western Alignment would
continue to climb away from the Tongue River Valley, then proceed to
connect with the existing Spring Creek rail spur. The Western
Alignment would avoid the environmentally sensitive Tongue River
Canyon and would incorporate at its steepest a grade of 0.93 percent
for a length of 2.4 miles.
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Current Application
TRRC has now filed an application in Finance Docket 30186 (Sub-No.
3) that requests authority under 49 U.S.C. 10901 to construct and
operate the Western Alignment as the final 17 miles of the Ashland to
Decker line (in lieu of the Four Mile Creek Alternative), to connect
with existing rail lines serving the Decker area coal mines (Tongue
River III). The remainder of the approved line from Ashland to Decker
would remain unchanged. In its Environmental Report that TRRC submitted
with its new application, TRRC focused on the immediate vicinity of the
Western Alignment and that alignment's two construction alternatives,
the Four Mile Creek Alternative and TRRC's preferred route.
5 In the Environmental Report, TRRC compares what it
believes to be the environmental impacts and costs of constructing and
operating the Western Alignment with the impacts and costs associated
with the relevant portions of the Four Mile Creek Alternative and
TRRC's preferred route. TRRC did not readdress the entire corridor
between Miles City and Decker because that corridor has already
received extensive environmental review in the environmental impact
statements prepared in Tongue River I and Tongue River II, both for the
Miles City to Ashland portion and the Ashland to Decker portion of this
corridor.
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\5\ We note that TRRC's preferred route is not really a
construction alternative at this point, since the Board approved the
Four Mile Creek Alternative, and not TRRC's preferred route, in its
November 1996 decision in Tongue River II.
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In preparing its Environmental Report, TRRC sought comments from a
number of Federal and state agencies and included their responses in
the report. Briefly, the U.S. Army Corps of Engineers (Corps) states
that, since all Corps' permits have expired, it will be reviewing
TRRC's proposal in its entirety. The Corps indicates that it believes
that the project, though analyzed in segments over a number of years,
is one continuous alignment. The Corps also suggests that environmental
conditions along the 130-mile rail route may have changed since the
earlier analyses were performed.
The Montana Department of Natural Resources and Conservation
expresses concern about the direction and flow of possible flood waters
and floodplain obstruction, water rights for dust control, blasting in
the vicinity of the Tongue River Dam, encroachments on county roads,
interference with dam rehabilitation, protection of historic resources,
and disturbance of survey monuments. The Montana Department of Fish,
Wildlife & Parks (MT FWP) acknowledges that the Western Alignment would
avoid operating costs and operational concerns associated with the Four
Mile Creek Alternative, but expresses concerns about the possible
impacts from the cut and fill requirements associated with the
construction of the Western Alignment and impacts to the nearby Tongue
River Reservoir state park. MT FWP also describes two issues that it
believes are unresolved from SEA's earlier environmental analysis: (1)
the preservation of the integrity of the fish hatchery at Miles City;
and (2) the status of the Multi-agency/Railroad Task Force set up in
Tongue River II. The Montana Department of Transportation (MT DOT), in
addition to expressing concerns about highway safety, requests re-
negotiation of a Memorandum of Understanding designed to protect state
highways. MT DOT also requests additional information about design
plans for the I-94 grade crossing at Miles City. The Montana Natural
Heritage Program has provided information about 5 species of concern
that may be present in the Western Alignment area.
No responses were included in TRRC's Environmental Report from
other agencies that TRRC contacted, including the U.S. Environmental
Protection Agency, the U.S. Fish and Wildlife Service, the National
Geodetic Survey, the National Park Service, the Montana Department of
Environmental Quality, and the Montana Department of Commerce.
The Northern Plains Resource Council (NPRC), in a separate filing
before the Board,6 has suggested that the Board should now
require another environmental analysis of the entire Miles City to
Decker corridor. NPRC disagrees with TRRC's view that the Board should
rely on its previous environmental analysis and focus its environmental
review on only the Western Alignment. Instead, NPRC suggests that there
are significant new changed environmental circumstances along the
entire route. For example, it points to the invalidation of the Montco
mine permit and the designation of the Tongue River as an impaired
waterbody under the Clean Water Act. In addition, NPRC alleges that
TRRC has significantly altered the alignments that were analyzed in
Tongue River I and Tongue River II as it begins to exercise the
authority previously granted in those proceedings.7 If that
were shown to be the case, it could be that the environmental analysis
of some of the previously approved line would no longer be adequate.
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\6\ See Northern Plains Resource Council, Inc.'s Reply in
Opposition to Petition to Establish Procedural Schedule, filed March
23, 1998.
\7\ This point also has been brought to SEA's attention
informally by various Montana state agencies.
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Also, in separate filings,8 Great Northern Properties
Limited Partnership suggests that the increased coal traffic projected
for the Western Alignment could affect the entire 130-mile route.
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\8\ See Great Northern Properties Limited Partnership's Replies
filed February 17, 1998, and May 20, 1998, and Motion to Compel
filed April 6, 1998.
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Environmental Review Process
The Council on Environmental Quality's (CEQ) rules implementing the
National Environmental Policy Act (NEPA) advise Federal agencies to
prepare supplements to an EIS where, as here, new information that is
relevant to environmental concerns is presented after a Final EIS has
been prepared. 9
[[Page 37444]]
See Marsh v. Oregon Natural Resources Council, 490 U.S. 360
(1989)(Marsh). Therefore, based on the CEQ rules, the Board's
environmental regulations at 49 CFR 1105.10(a)(5), and SEA's analysis
of all the information on the Western Alignment SEA has received to
date, SEA has determined that a Supplement to the EIS in Finance Docket
30186 (Sub-No. 2) (Supplement) is the appropriate means of reviewing
TRRC's application for the Western Alignment in Tongue River III.
Specifically, SEA will prepare a draft Supplement including preliminary
mitigation recommendations that will be available for a 45-day comment
period. Based on comments to the draft Supplement, and any further
analysis, SEA will prepare a final Supplement, which will include
appropriate environmental mitigation recommendations. The Board will
consider the draft and final Supplements, any comments, and other
available environmental information in rendering its decision on
whether to grant TRRC's new application. In its decision, the Board
will consider both economic and competitive transportation issues and
will impose any environmental conditions it deems appropriate.
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\9\ The CEQ regulations at 40 CFR 1502.9(c) state that
Agencies:
(1) Shall prepare supplements to either draft or final
environmental impact statements if:
(i) The agency makes substantial changes in the proposed action
that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed
action or its impacts.
(2) May also prepare supplements when the agency determines that
the purposes of the Act will be furthered by doing so.
(3) Shall adopt procedures for introducing a supplement into its
formal administrative record, if such a record exists.
(4) Shall prepare, circulate, and file a supplement to a
statement in the same fashion (exclusive of scoping) as a draft and
final statement unless alternative procedures are approved by the
Council.
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Request for Comments About the Scope of the Supplement
Although CEQ's rules implementing NEPA do not require public
scoping for the preparation of Supplements, SEA believes that it is
appropriate in this case to request comments regarding the
environmental scope of, and potential environmental concerns and issues
to be addressed in, the Supplement. 10 Typically, SEA's
environmental analysis includes potential impacts to safety, land use,
water quality, endangered species, wildlife habitat, cultural
resources, air, and noise that would result from the proposed
transaction. See 49 CFR 1105(7)(e). At a minimum, SEA intends in its
Supplement to analyze these potential environmental impacts associated
with the construction and operation of the Western Alignment and to
recommend appropriate mitigation to reduce or eliminate potentially
adverse impacts in these areas. We invite interested parties to address
any other potential impacts or areas of concern that are directly
related to the proposed construction and operation in Tongue River III,
and, therefore, should also be considered in the Supplement.
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\10\ As noted, this Notice provides a 45-day comment period.
TRRC may reply within 15 days thereafter.
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In addition, we invite comments about TRRC's suggestion that SEA's
environmental analysis should be limited to the Western Alignment,
TRRC's proposed construction alternatives for the Western Alignment,
and the no-build alternative, and that there is no reason to revisit
any of the earlier environmental analysis in Tongue River I and Tongue
River II. As discussed earlier, some agencies and other interested
parties have suggested that our approach should be broader. Moreover,
the question of when circumstances have changed so much as to make some
or all of a prior analysis stale is a difficult one. Therefore, we
request comments on whether the Supplement should focus only on the
environmental impacts associated with the Western Alignment and its
alternatives, or whether the Supplement should encompass environmental
concerns beyond the immediate geographic area of the Western Alignment
(i.e, take at least a limited look at the rest of the line recently
approved in Tongue River II, or perhaps even revise or update the
environmental analysis in Tongue River I if we are shown that the
environmental analysis has become outdated and is no longer
adequate).11
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\11\ The Western Alignment plainly is directly related to Tongue
River II because it is an alternative route for a part of that line.
In addition, while no stay of Tongue River II was sought from the
Board or in any court, petitions for judicial review are pending in
the Ninth Circuit in NPRC. It is more difficult to justify
revisiting Tongue River I, which has long been administratively
final and is not pending judicial review in any court. On the other
hand, as some agencies have contended, it can be argued that Tongue
River I, II and III cannot be considered separately and are all part
of the same line.
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The CEQ rules direct agencies to consider in any Supplement
``significant new circumstances or information relevant to
environmental concerns and bearing on the action or its impacts.'' 40
CFR 1502.9(c). At the same time, it is well settled that an agency need
not supplement an environmental impact statement every time new
information comes to light after the environmental impact statement is
finalized. Marsh, 490 U.S. at 373. Thus, the passage of time, in and of
itself, is not necessarily a reason to repeat or redo environmental
analysis. Id. Moreover, the environmental analysis in Tongue River I
and Tongue River II was thorough and comprehensive. Therefore, we
intend to use and rely on the data and analysis contained in our
previous environmental documents for the Miles City to Ashland line and
the Ashland to Decker line unless it is shown that, as a result of
significant new circumstances, what was done before is no longer
adequate. For example, it may be that certain portions, if not all, of
the previous environmental documentation should be updated or revised
to reflect significant new information (i.e, substantial alignment
changes) that has made our former analysis incomplete, out-of-date or
inapplicable.
Therefore, SEA has decided to seek comments on whether, to what
extent, and in what environmental areas, our prior environmental
documents may have become out-of-date. Specifically, we invite all
interested parties to provide us with information, including specific
examples, on whether any environmental conditions have changed
substantially since we completed our environmental analysis in Tongue
River I and Tongue River II. For example, have any substantial changes
occurred in land use, topography, wetlands or water resources,
endangered species, or cultural resources? If significant changes have
occurred that could affect the adequacy of the conclusions in our
previous environmental documents, such as NPRC's claim that TRRC may
now have altered significantly the proposed alignment from what was
analyzed in the prior environmental impact statements, we should be
informed of these changes now so that we can consider such evidence in
determining what the scope of the Supplement should be.
All comments should provide specific evidence to support the claims
that are made. We want to know with specificity why commenters believe
that environmental circumstances have changed significantly, possibly
affecting our previous analysis and conclusions and, therefore,
warranting further review in the Supplement.
SEA will also consult with affected Federal, state and local
agencies regarding the appropriate scope of the Supplement. Based on
its consideration of any comments to this Notice, and its evaluation
and review of all available information, SEA will then announce what
the scope of the Supplement will be.
As directed above, please submit comments by August 24, 1998 (45
days). TRRC may reply within 15 days thereafter.
[[Page 37445]]
By the Board, Elaine K. Kaiser, Chief, Section of Environmental
Analysis.
Vernon A. Williams,
Secretary.
[FR Doc. 98-18455 Filed 7-9-98; 8:45 am]
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