BEFORE THE

SURFACE TRANSPORTATION BOARD

\_\_\_\_\_\_\_\_

FINANCE DOCKET NO. 33407

DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION

CONSTRUCTION INTO THE POWDER RIVER BASIN

\_\_\_\_\_\_\_\_

COMMENTS OF

MAYO FOUNDATION

ON THE

DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT

\_\_\_\_\_\_\_\_\_

In accordance with the schedule published by the Surface Transportation
Board (STB or Board), Mayo Foundation (Mayo) hereby submits its comments
on the Draft Supplemental Environmental Impact Statement (DSEIS) served
on April 15, 2005. Mayo's comments will focus primarily on the remanded
horn noise issue.

The Section of Environmental Analysis (SEA) prepared and issued the
DSEIS in response to the remand of the 8^th^ Circuit Court of Appeals in
[Mid States Coalition for Progress v. STB]{.underline}, 345 F.3d 520. As
pertinent to the horn noise issue, the Court found the Board erred in
failing to consider other types of mitigation not involving limiting the
use of horns.[^1] The Court observed such other mitigation measures
might include, for example, sound-insulating treatments for buildings
within high noise areas and installation of sound barriers.

In remanding this issue, the court expressed serious concerns that horn
noise will "increase the distance at which buildings will be subjected
to average noise levels of 70 decibels from 210 feet (distance of effect
of wayside noise alone) to 1110 feet." The Court observed that it is
"hard to imagine how insulating affected buildings might pose a safety
threat" and directed that the Board must at least explain why such
mitigation is not warranted. 343 F.3d at 536.

# The Adverse Impact of Horn Noise

The adverse impact of noise on patient rehabilitation and sleep
requirements is not in dispute. Previously in a response to the DEIS,
Mayo cited testimony of David Bishop who represented a part of Rochester
in the State House of Representatives for 10 years (Mayo Comments, p.
42) and Dr. Peter Amadio of the Zumbro Valley Medical Society (Mayo
Comments, p. 44) addressing the effects of noise on patient care.
Attached is a copy of a study conducted in 2004 by Mayo nursing staff,
which clearly defines the deleterious effects of sleep disturbance on
patients because of noise disruptions.

The severity of the potential impact of persistent noise on recovering
patients is graphically illustrated in the attached article that
appeared in the June 2, 2005, issue of the Washington Examiner. In this
instance, the Alexandria Virginia Police Department stepped in to remove
an automobile with a malfunctioning alarm that caused three days of
annoyance and serious sleep disruption to a woman endeavoring to recover
from recent surgery. Unfortunately, Mayo patients would not have
recourse to the Rochester Police Department to tow away DM&E trains
blowing horns in close proximity to their bedsides. Mayo reemphasizes
its alarm as to the prospective impact on its patients who will be
subjected to train whistles throughout the day and night if adequate
mitigation or preventive measures are not forthcoming.

# The FRA's New Regulations Will Increase The Adverse Impact Of Horn Noise

**[On Mayo Patients]{.underline}**

Mayo previously expressed its concerns over the proposed FRA regulations
mandating the sounding of locomotive horns at highway rail crossings.
Absent considerable investment of public funds that would be required to
substantially upgrade grade crossings in close proximity to Mayo
facilities and throughout Rochester and approval of a whistle free zone
by the Federal Railroad Administration, new FRA regulations mandating
sounding of locomotive horns at highway rail crossings will result in
virtually uninterrupted sounding of locomotive horns from one end of
Rochester to the other at all hours of the day. Mayo has reviewed and
supports comments made by Olmsted County and the City of Rochester
regarding the proximity of crossings within the City of Rochester and
the impact of horn noise.

SEA's comments concerning availability of whistle free zones upon
satisfaction of FRA requirements are not responsive to the Court's
remand. However it should be recognized that installation and
maintenance of four quadrant lights and gates at the thirteen motor
vehicle grade crossings in Rochester would be very costly and there is
no assurance as to the availability of assistance funds to meet those
requirements.[^2] Thus, Rochester and its constituents would be faced
with the daunting task of seeking access to scarce public funds from the
federal or state government or most likely undertaking the burden within
the impacted community in order to secure adequate relief.

Moreover, Mayo reiterates its previously expressed concerns that the FRA
requirements for whistle-free zones would exacerbate other problems
including increased delays for emergency and other vehicles at grade
crossings.

The SEA must fully evaluate this potential impact. Specifically, the SEA
must accurately describe in the SEIS the duration of horn noise through
the City of Rochester and its impact on sensitive receptors.

# Possible Measures of Mitigation

With respect to possible measures to mitigate horn noise, SEA considered
requirements for sound proofing material on buildings such as additional
insulation, newer insulated windows or air conditioning so that windows
would not have to be opened. However, thus far SEA has declined to
recommend any of these measures for the following several reasons:

> ● First, this type of mitigation would constitute a departure from
> precedent in other cases where such measures were imposed only for
> wayside noise, not horn noise.
>
> ● Second, many horn noise receptors will also benefit from the
> mitigation previously imposed for wayside noise.
>
> ● Third, DM&E may not reach the full operational level for several
> years if at all. Further, due to several alternative interchange
> locations along DM&E's system, the City of Rochester and Mayo's
> facilities might never experience the full level of 37 trains per day
> and the associated noise.
>
> ● Fourth, the grade crossing improvements will alleviate horn noise to
> some extent.
>
> ● Fifth, horn noise mitigation at the noise receptors themselves would
> be extremely costly -- ranging from \$4.3 million to \$17.4 million in
> the five communities (out of 56) that have not negotiated agreements
> with DM&E.[^3]
>
> ● Finally, requiring mitigation in these communities might cause the
> other communities to opt out of their negotiated agreements.

Mayo supports and agrees with comments submitted by Olmsted County and
the City of Rochester regarding unresponsiveness, inaccuracy, and
insufficient analysis demonstrated by the reasons cited by the SEA for
declining to recommend any of these measures.

Furthermore, the SEA must re-evaluate the cost of mitigation by looking
at a partial solution focusing on the most sensitive receptors, e.g.,
highly sensitive clinic and hospital facilities, retirement living
centers, nursing homes and assisted living facilities. In Rochester
highly sensitive facilities located within 1,110 feet of the DM&E main
line (the area of impact at the 70dBA Ldn noise level) include Rochester
Methodist Hospital with 794 licensed beds, Mayo Clinic Rochester (a
medical group practice involving over 1600 physicians), the Federal
Medical Center, Hope Lodge (a 28 unit hospice facility), Charter House
(a retirement living center with more than 230 independent living units,
a 32-bed Medicare certified skilled nursing facility, a 32-bed
Supportive Care Center and a 45 unit residential Assisted Living
Center), Central Towers (a 105 unit senior retirement living center) and
Park Towers (a 180 unit senior retirement living center). Even though
the SEA may ultimately conclude that it would be too costly to mitigate
for all sensitive receptors, it should at least provide an analysis of
the impact on, and consider recommending mitigation for, these highly
sensitive populations.

The fact that smaller communities with concerns different in size and
scope than those faced by Mayo and Rochester have entered into
agreements with DM&E, should not be deemed as an excuse to alter or
diminish the responsibility of SEA to evaluate the unique circumstances
in Rochester and to reconsider in good conscience mitigation deemed
warranted and sufficient to address the serious impact from horn noise
to the detriment of recovering patients and to the peace and tranquility
that should be assured for residents at hospice and assisted living
facilities. "NEPA does not require a fully developed plan that will
mitigate all environmental harm before an agency can act..." ([Laguna
Greenbelt v. United States Department of Transportation]{.underline}, 42
D.3d 517 (9^th^ Cir. 1994).

This is the largest construction case ever reviewed by the Board and
consequently it has unique ramifications including the prospective
impact of 37 or more trains blowing whistles through Rochester and
rumbling in close proximity to Mayo facilities where patients from
around the world are depending upon a constructive environment conducive
to healing. What the Board may or may not have done in other
circumstances not involving such widespread critical health concerns
should not preclude SEA from recommending measures adequate to ensure
that the healthy environment maintained by Mayo and Rochester is not
seriously degraded to the detriment of all concerned.

SEA also investigated the construction of sound walls along portions of
the existing line bordered by residential areas and other sensitive
receptors. Relying on cost information previously submitted by the City
of Rochester, SEA estimated that it would cost \$5.8 million to erect
sound walls in Rochester alone and another \$4.8 million in other
communities that do not have negotiated agreements.

Beyond the cost issue, SEA opines sound walls are not effective, are
unattractive, require maintenance, attract graffiti, create safety
hazards for persons and animals caught between road crossings, and
create visual obstructions. SEA also repeats its concern that
implementation of sound barrier mitigation could undermine negotiated
agreements already in place.

In view of the effectiveness of sound barriers on interstate roadways
within city environments such as I-66 within the Washington DC area,
SEA's dismissal of careful inquiry into possible use of such barriers as
a protection for Mayo and other sensitive receptors is not justifiable.
SEA should thoroughly evaluate such alternatives before making a final
recommendation in a SEIS for consideration by the Board.

# SEA Has Failed To Address the Most Effective Alternative

Notwithstanding the cavalier and inadequate analysis of mitigation for
horn noise as remanded by the Court, more importantly, SEA has not
addressed a readily apparent and compelling alternative that would serve
to mitigate, indeed eliminate, the adverse impact on Mayo and its
patients that would result from train horns blowing incessantly
throughout Rochester as mile long trains speed by in close proximity to
Mayo facilities.

At page 2-10 of the SDEIS, SEA reasons that "some communities especially
those further east, might never experience the full level of 37 trains
per day and associated levels of noise including horn noise" because
"several alternative interchange locations along DM&E's existing system
would allow interchange of coal traffic with other carriers." This
statement is a rudimentary recognition of an important alternative that
has not been rigorously explored and objectively evaluated as required
by NEPA[^4].

The Board's previous decision in which it considered the nature and
extent of the environmental issues involved with the proposed
construction project was served on January 30, 2002. Not four weeks
later on February 26, 2002, Iowa, Chicago & Eastern Railroad Corporation
(IC&E), a non-carrier subsidiary of Cedar American Rail Holdings which
in turn is wholly owned by DM&E, posted notice to employees of I&M Rail
Link, LLC (IMRL) of its intent to acquire and operate the rail lines of
IMRL. Thereafter, on June 7, 2002, IC&E filed notice of exemption to
acquire and operate the assets of IMRL including (1) IMRL's existing
rail lines that extend about 1,125 miles between Chicago, IL, Kansas
City, MO and Minneapolis -- St. Paul, MN; and across northern Iowa and
southern Minnesota and (2) 275 miles of IMRL trackage rights over other
carriers and other interests.

In [Iowa, Chicago & Eastern Railroad Construction -- Acquisition and
Operation Exemption -- Lines of I&M Rail Link, LLC]{.underline}, STB
Finance Docket No. 34177, served July 22, 2002, the Board denied a
request to stay effectiveness of the acquisition of IMRL. In that
Decision, the Board noted that it received comments from the U.S.
Department of Transportation (DOT) urging the Board to expand
environmental oversight in the DM&E construction case to encompass
communities on IMRL lines (July 2002 Decision, p. 5)

In the July 2002 Decision, the Board acknowledges "it is possible that
construction and operation of \[DM&E's proposed\] new line could result
in substantial additional traffic on what are now IMRL lines as a result
of this transaction" (Decision, p. 15). The Board then notes "\[W\]e did
not address the proposed acquisition in our EIS in [DM&E
Construction]{.underline}, however, as the proposed acquisition
transaction was not announced until after we had given approval for that
line to be constructed" (July 2002 Decision, p. 18, note 29). The Board
did preclude IC&E from moving any additional trains handling traffic to
and from the line approved for new construction in DM&E Construction
over what was IMRL lines until an environmental review is conducted
(Decision, p. 19).

Subsequently on August 29, 2002, DM&E and Cedar American Rail Holdings
filed an application seeking acquisition of control of IC&E (formerly
IMRL) in STB Finance Docket No. 34178. A key objective cited in that
application was that common control "will guarantee that DM&E will have
neutral eastern routings for coal movements from the Powder River Basin
(PRB) in Wyoming if and when DM&E constructs that line" (STB Finance
Docket No. 34178, served February 3, 2003, p. 8).

In his verified statement in support of DM&E's proposed acquisition of
control of IC&E (IMRL), Mr. Kevin Schieffer, President of DM&E stated:

1\. DM&E previously negotiated for access, trackage rights and

marketing arrangements with IMRL but was unsuccessful in

acquisition talks in late 1999 and early 2000 (VS, p. 2).

2\. Critical to the proposed combination is availability of efficient

interchange at Owatonna (VS, p5)

3\. The proposed common control will protect and ensure competitive

and marketing benefits to be derived from the PRB project. (VS, p.6).

4\. The importance of IMRL was identified in the DM&E PRB application as

IMRL has always been an important connection for the PRB project.

> (VS, p.7,8).

5\. The original modeling done on the PRB project contemplated an

agreed upon power of attorney for DM&E to quote rates over the

IMRL and trackage rights that would have allowed DM&E to run

on IMRL tracks. [^5] Any additional control provided by ownership or

common control would not naturally change the degree of flexibility

and marketing authority DM&E initially assumed relative to the PRB

project on initial planning as set forth before the STB (IMRL was not a

party in the Construction Proceeding). (VS, p. 8).

The Department of Transportation filed comments in the control
proceeding in which it recognized that once DM&E and ICE come under
common control the reason for not considering cumulative environmental
impacts of routing PRB coal over IC&E lines in the PRB Construction Case
(that is, the asserted lack of authority to require DM&E to take action
on property it does not own) "will not longer be valid (because with
common control, DM&E will effectively "own" the IC&E lines).[^6]

By decision served on February 3, 2003, the Board approved control by
DM&E of IC&E. Thereafter the 8^th^ Circuit vacated and remanded the
Board's decision in the Construction case in [Mid States.]{.underline}
As a result, the Construction Case is not final and obviously, DM&E does
not possess the requisite authority to construct and operate its
proposed new line.[^7]

In view of the fully disclosed interrelationship of the construction
application and acquisition of control of the former IMRL by DM&E and
the potential for mitigating, or avoiding entirely, the serious adverse
impacts on Mayo and Rochester routing of PRB coal traffic over former
IMRL lines is a compelling alternative that must now be thoroughly
considered and fully evaluated.[^8]

IMRL is a key factor in DM&E's plans for movement of PRB coal and
acquisition of control is expected to protect and ensure benefits to be
derived from the construction project by guaranteeing that DM&E will
have neutral eastern routings for coal movements and direct access to
Kansas City and Chicago. Critical to that objective was assurance of an
efficient connection at Owatonna. That objective has been secured
through a negotiated agreement with Union Pacific as noted in STB FD No.
34178, Decision No.10, served July 9, 2003.

In its prior decision the Board recognized that some of the potential
impacts on Rochester associated with rebuilding the existing line might
never occur as DM&E has stated it could interchange at least some of its
coal traffic at points west of Rochester. (January 2002 Decision, p.21).
DM&E now controls the former IMRL through ownership. With that control,
it has secured availability of routings it deems to be of key importance
to the construction project.

SEA has not undertaken to consider a viable type of "mitigation" not
involving limiting the use of horns that would completely eliminate horn
noise impacts on Mayo (and Rochester) by routing PRB coal traffic onto
IC&E lines prior to reaching Rochester. Such routing would also serve to
eliminate virtually all other adverse impacts from PRB coal traffic on
Mayo and Rochester. SEA admits in the DEIS that routing through
Rochester would result in many significant impacts.[^9]

The Board previously asserted that it could not require DM&E to take
action on property it does not own nor could it impose requirements on a
carrier which is not involved in the construction proceeding. (January
2000 Decision, p. 27). Because of DM&E's recent acquisition of IMRL,
those impediments no longer exist with respect to the former IMRL.
Routing of the PRB coal traffic over the IC&E lines has now become a
reasonable and viable alternative that warrants detailed evaluation in
direct comparison to DM&E's routing through the City of Rochester. As
mandated by the CEQ regulations, the SEA must "present the environmental
impacts of the proposal and the alternatives in comparative form, thus
sharply defining the issues and providing a clear basis for choice among
options by the decision-maker and the public." (40 C.F.R. 1502.14).
Further, SEA's analysis must "rigorously explore and objectively
evaluate all reasonable alternatives, giving "substantial treatment" to
each alternative that is considered in detail. (40 C.F.R. 1502.14 (b)).
The courts have clearly held that failure to consider a viable
alternative renders an alternative analysis invalid.

Recently the Board recognized that "\[a\]n agency is required to
supplement an environmental impact statement (EIS) when there are
'significant new circumstances or information relevant to the
environmental concerns and bearing on the proposed action or its impacts
(40 C.F.R. 1502.9 (c)(1)(ii))." [New England Transrail, LLC dba
Wilmington and Woburn Terminal Railroad Company -- Construction
Acquisition and Operation Exemption]{.underline}, STB Finance Docket No.
34391, served May 3, 2005. Here acquisition of the former IMRL is
acknowledged to be of key importance to the construction application but
was not formally sought until immediately after SEA conducted its prior
review and the Board served its January 2002 decision in the
Construction Proceeding. DM&E's ownership of the former IMRL has
converted a possible alternative into reality.

Because an alternative routing over the IMRL clearly has the potential
to be significantly more environmentally preferable, it is incumbent
upon SEA to comparatively evaluate this alternative. As stated by the
court in [Calvert Cliff's Coordinating Committee, Inc. v. Atomic Energy
Commission]{.underline}, 449 F.2d 1109 (DC Cir. 1971) the evaluation of
alternatives seek, "to ensure that each agency decision-maker has before
him and takes into proper account all possible approaches to a
particular project... which would alter the environmental impact and
cost benefit analysis. Only in that fashion is it likely that the most
intelligent, optimally beneficial decision will ultimately be made." 449
F.2d at 1114.

The court in [City of Carmel-by-the-Sea v. United States Department of
Transportation]{.underline}, (123 F.3d 1142 (9^th^ Cir. 1997), held that
the range of alternatives considered is inadequate if the nature and
scope of the proposed action changes between the draft and final impact
statement (here between the DEIS and the FSEIS), and if the agency does
not update the list of alternatives considered to reflect these changes.
And, in the [State of Wisconsin v. Weinberger]{.underline}, 745 F.2d 412
(7^th^ Cir. 1984), the court noted that a supplemental impact statement
is not necessary "unless the new information provides a seriously
different picture of the environmental landscape such that another hard
look is necessary." The court further explained that the new information
must present "seriously different picture of the likely environment
consequences of the proposed action" not adequately discussed in the
original impact statement. In the current situation, the ramifications
of acquisition of IMRL have not been adequately considered or discussed
in the DSEIS. An EIS's "form, content, and preparation \[must\] foster
... informed decision-making." See [State of California v.
Black]{.underline}, 690 F.2d 753 (9^th^ Cir.1982). Absent a comparative
evaluation of routing over the IC&E, the Board would be lacking critical
information for formulation of an informed decision in this proceeding.

An agency must consider an alternative even though the implementation of
that alternative is not within its jurisdiction or is not authorized by
its enabling legislation, SEA's previously stated limitation in
effectively considering alternative routing was said to be due to the
Board's asserted inability to require such routings with carriers who
were not parties to the construction proceeding. However, in view of
DM&E's ownership of the former IMRL, that excuse is no longer valid. As
stated in [Mandelker]{.underline}[^10], section 10:30, "Range of
Alternatives that must be addressed: "NEPA's environmental full
disclosure mandate will not be met if the agency is allowed to
excessively restrict the alternatives it considers."

Nor can the SEA fulfill its obligations by simply addressing the IMRL
alternative in the FSEIS without receiving public comment on that issue.
Due to the nature and extent of such additional consideration, public
comment is required. Mayo maintains that a revised and expanded DSEIS
must be prepared and re-circulated for comment prior to the issuance of
a FSEIS in order to properly provide this new information for
consideration as part of the Board's decision-making process, to legally
comply with the procedural provisions of NEPA, and to meet the "hard
look" requirement of the courts.

In [Marsh v. Oregon Natural Resources Council]{.underline}, 490 U.S. 360
(1989), the Supreme Court considered the duty of agencies to prepare
supplemental impact statements and concluded it would be inconsistent
with NEPA's purposes "for the blinders to adverse environmental effects,
once unequivocally removed, to be restored prior to the completion of
agency action simply because the relevant proposal has received initial
approval." 490 U.S. at 371.

CONCLUSION

Mayo has participated in these proceedings because of deep seated
concern that the proposed movement of PRB coal traffic through Rochester
in close proximity to Mayo facilities would seriously strain its ability
to continue providing world class health care, cutting edge medical
research, and top level teaching in a community environment compatible
with the quality and excellence expected of Mayo in all facets of its
undertakings.

This past year Mayo Clinic Rochester handled over 1.4 million out
patient visits while Saint Mary's Hospital accepted over 42,000
admissions and Rochester Methodist Hospital accepted over 18,000
admissions. All of those patients expected and received world-class
medical treatment in a community that is conducive to their recovery and
hospitable to their families who accompanied them from all over the
world.

For all of those who will seek out Mayo for capable treatment and
peaceful recovery, as a solid base within which to conduct advanced
research, and as a constructive forum in which to teach and train, Mayo
urges that SEA has yet to identify and adequately evaluate mitigation
not involving limiting use of locomotive horns including the following:

1\. Identification of the most sensitive noise receptors and
consideration

of measures which could mitigate disruption of patient sleep and

recovery at Mayo facilities and other highly sensitive populations

> close to the rail line through Rochester.

2\. Careful consideration and evaluation of noise barrier alternatives

such as are in use to mitigate highway nose within communities.

3\. Thorough evaluation of the readily apparent alternative of routing

PRB coal traffic away from Mayo and Rochester over the former

IMRL lines which are now essentially owned by DM&E.

The SDEIS should be revised and expanded and thereafter made available
for further comment as necessary in light of the foregoing.

Respectfully submitted,

Mayo Foundation

By: Keith G. O'Brien

Rea, Cross & Auchincloss

1707 L Street, N.W.

Suite 570

Washington, DC 20036

Attorney for Mayo Foundation

Dated: June 6, 2005

[^1]: The Court indicated that the Board could appropriately defer to
    the Federal Railroad Administration in refusing to limit the
    sounding of locomotive horns. In this regard, the DSEIS points to
    FRA's Interim final Rules effective December 18, 2004, establishing
    requirements for locomotive horn soundings at grade crossings.

[^2]: It should be noted that the first of the two grade separations
    mandated in the Board's previous order would not be required until
    traffic levels through Rochester reach [20 million tons of
    coal]{.underline} and the second not until traffic levels reach [50
    million tons of coal]{.underline} annually. Those volume levels
    might never be reached depending upon the volume of PRB coal related
    traffic actually moved through Rochester. Thus any immediate hope
    for a quiet zone in Rochester would require gates and lights at all
    crossings within the community.

[^3]: These estimates are based on cost-per-receptor ranging form
    \$1,000 to \$4,000. The particular type of sound-proofing is not
    identified by type or location.

[^4]: 40 C.F.R. 1502.14

[^5]: (Acquisition of IMRL trackage rights would have required Board
    review and approval pursuant to 49 U.S.C. 11323-11326. No request
    for such rights was submitted in connection with Construction
    Application).

[^6]: See, Decision No. 7 STB No. FD 34178, Appendix B, p. 37.

[^7]: SDEIS, p. 1-17.

[^8]: 40 C.F.R. 1503.4

[^9]: The CEQ regulations define mitigation, in part, as avoiding
    environmental impacts. (40 C.F.R. 1508.20).

[^10]: Mandelker, Daniel R. [NEPA Law and Litigation.]{.underline} West
    Group, second edition, 1999.