[Federal Register Volume 78, Number 6 (Wednesday, January 9, 2013)]
[Notices]
[Pages 1936-1937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00242]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 30186]


Tongue River Railroad Company, Inc.--Rail Construction and 
Operation--In Custer, Powder River and Rosebud Counties, MT

AGENCY: Surface Transportation Board.

ACTION: Notice of Supplemental Application for Construction and 
Operation Authority and Board Acceptance.

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SUMMARY: Tongue River Railroad Company, Inc. (TRRC) seeks a Board 
license under 49 U.S.C. 10901 to construct and operate a rail line in 
southeast Montana. The purpose of the proposed line is to transport low 
sulfur sub-bituminous coal from mine sites in the Otter Creek and 
Ashland, Mont., area. TRRC had filed a revised application for its 
construction authority on October 16, 2012, but modified the project in 
a December 17, 2012 supplemental application that supersedes the 
October 16 revised application. As discussed in the supplemental 
application, TRRC's preferred routing for the proposed line would be 
the Colstrip Alignment between Colstrip, Mont., and Ashland/Otter 
Creek, Mont., the southern portion of which was approved previously by 
the Interstate Commerce Commission (ICC).
    The Board here gives notice that it is accepting the supplemental 
application. The Board has already established a service list for this 
proceeding in a notice served on September 20, 2012, and a procedural 
schedule for filings on the transportation merits in a decision served 
on November 1, 2012. Under that schedule, filings concerning whether 
the supplemental application meets the criteria of 49 U.S.C. 10901 are 
due by March 1, 2013, and any reply comment from TRRC is due by April 
15, 2013. As indicated below, any entity that is not currently on the 
service list that submits a filing by March 1 will be added to the 
service list.

DATES: This notice is effective on January 13, 2013. Pleadings must be 
filed in accordance with the procedural schedule that the Board has 
established in this case. All filings must be served concurrently on 
all parties of record and must be accompanied by a certificate of 
service.

ADDRESSES: Any filing submitted in this proceeding must be submitted 
either via the Board's e-filing format or in the traditional paper 
format. Any person using e-filing should attach a document and 
otherwise comply with the instructions found on the Board's Web site at 
``www.stb.dot.gov'' at the ``E-FILING'' link. Any person submitting a 
filing in the traditional paper format should send an original and 10 
paper copies of the filing (and also an electronic version) to: Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In 
addition, one copy of each filing in this proceeding must be sent (and 
may be sent by email only if service by email is acceptable to the 
recipient) to each of the following: (1) David H. Coburn, Steptoe & 
Johnson LLP, 1330 Connecticut Ave. NW., Washington, DC 20036; and (2) 
any other person designated as a party of record on this proceeding's 
service list.

FOR FURTHER INFORMATION CONTACT: Marc A. Lerner, (202) 245-0390. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at: 1-800-877-8339].

SUPPLEMENTARY INFORMATION: In 1986, the ICC authorized TRRC to 
construct an approximately 89-mile rail line between Miles City, Mont., 
and Ashland and Otter Creek, Mont., in a proceeding known as Tongue 
River I.\1\ In 1996, the Board authorized TRRC to build a contiguous 
41-mile line from Ashland to Decker, Mont., in Tongue River II.\2\ In 
2007, the Board authorized TRRC to build and operate the Western 
Alignment, a 17.3-mile alternative route for a portion of the route 
already approved in Tongue River II, in a proceeding known as Tongue 
River III.\3\
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    \1\ Tongue River R.R.--Rail Constr. and Operation--In Custer, 
Powder River and Rosebud Cntys., Mont. (Tongue River I), FD 30186 
(ICC served Sept. 4, 1985), modified (ICC served May 9, 1986), pet. 
for judicial review dismissed, N. Plains Res. Council v. ICC, 817 
F.2d 758 (9th Cir.), cert. denied, 484 U.S. 976 (1987).
    \2\ Tongue River R.R.--Rail Constr. and Operation--Ashland to 
Decker, Mont., 1 S.T.B. 809 (1996), pet. for reconsid. denied (STB 
served Dec. 31, 1996).
    \3\ Tongue River R.R.--Rail Constr. and Operation--Western 
Alignment, FD 30186 (Sub-No. 3) (STB served Oct. 9, 2007), pet. for 
reconsid. denied (STB served March 13, 2008).
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    Petitions for review of Tongue River II and Tongue River III were 
filed in the United States Court of Appeals for the Ninth Circuit, and, 
in 2011, the court affirmed in part, and reversed and remanded in part, 
those decisions for additional Board review. N. Plains Res. Council v. 
STB, 668 F.3d 1067 (9th Cir. 2011). The court's decision implicitly 
required the Board to revisit the environmental analysis for Tongue 
River I (as well as Tongue River II and Tongue River III), because the 
agency had conducted a cumulative impacts analysis for the entire line 
in Tongue River III, and not just the portion of the line at issue in 
Tongue River III, and had made the resulting mitigation conditions 
applicable to the entire line in its Tongue River III decision. On 
April 19, 2012, TRRC informed the Board that it no longer intended to 
build the Tongue River II and Tongue River III portions of the 
railroad.
    In a decision served on June 18, 2012, the Board dismissed Tongue 
River II and Tongue River III and reopened Tongue

[[Page 1937]]

River I.\4\ As explained in more detail in that decision, the Board 
required TRRC to file a revised application that would present the its 
current plans to build a rail line between Miles City and Ashland. In 
addition, the Board announced that it would conduct a new environmental 
review, rather than a supplemental environmental review based on the 
three prior environmental reviews conducted in Tongue River I, Tongue 
River II, and Tongue River III.
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    \4\ See Tongue River R.R.--Rail Constr. and Operation--In 
Custer, Powder River and Rosebud Cntys., Mont., FD 30186, et al., 
slip op. at 2 (STB served June 18, 2012).
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    In its revised application filed on October 16, 2012, TRRC proposed 
to go forward with the Tongue River I project, although in modified 
form.\5\ After reviewing the submission, the Board, in a decision 
served on November 1, 2012, clarified that the Board's review in this 
proceeding would include not only the new environmental review of the 
entire construction project, but also an examination of the 
transportation merits supporting the entire Tongue River I line.\6\ The 
November 1 decision also directed TRRC to supplement the revised 
application to provide a sufficient record for the Board's review, 
including additional evidence and argument in support of the 
transportation merits. Finally, the decision established a new 
procedural schedule for filings on the transportation merits 
appropriate for this proceeding and required that TRRC publish notices 
consistent with that decision.
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    \5\ Although the decision granting Tongue River I authorized the 
construction of an 89-mile line, TRRC described the line in its 
October 16 filing as being approximately 83 miles in length, based 
on refinements that would straighten and shorten the alignment.
    \6\ The Board's review of construction applications is governed 
by 49 U.S.C. 10901, its regulations at 49 CFR 1150.1-1150.10, and 
the requirements of the National Environmental Policy Act of 1969, 
42 U.S.C. 4321-4370f (and related environmental laws).
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    On December 17, 2012, TRRC filed a supplemental application 
intended to supersede the October 16 filing. TRRC explained that, in 
its October 16 application, it had proposed the construction of a line 
between Miles City, Mont., and Ashland/Otter Creek, Mont., following a 
line similar to that approved by the ICC in 1986. However, TRRC now 
proposes a different routing, known as the Colstrip Alignment, as its 
preferred alignment.\7\
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    \7\ The ICC had examined a variation on the Colstrip Alignment 
as a potential route in Tongue River I.
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    According to TRRC, it would construct the line, and the line would 
be operated solely by BNSF Railway Company (BNSF), which owns a one-
third interest in TRRC's parent company, Tongue River Holding Company, 
LLC. TRRC states that, if selected as the preferred route, the 42-mile 
Colstrip Alignment would provide rail transportation for low sulfur, 
sub-bituminous coal from proposed mines in Rosebud and Powder River 
Counties, Mont., to an existing BNSF line, and consequently to the rest 
of the national rail network. Specifically, the line would connect at 
the north end with an existing and lightly used BNSF line known as the 
Colstrip Subdivision, which currently connects with the Forsyth 
Subdivision at Nichols Wye, a point approximately 6 miles west of 
Forsyth and approximately 50 miles west of Miles City. At its southern 
end, the Colstrip Alignment would have the same two termini south of 
Ashland as those proposed by TRRC in its October 16 filing. Terminus 
Point 1 would, therefore, be at the previously proposed Montco Mine 
location, and Terminus Point 2 would lie along the Otter Creek 
drainage. TRRC claims that the Colstrip Alignment offers the shortest, 
most cost effective, and least environmentally impactful routing for 
the proposed line.
    Comments on the transportation aspects of TRRC's supplemental 
application may be filed on or before March 1, 2013. Interested persons 
need not be on the service list to file comments on TRRC's supplemental 
application, but they must serve a copy of their filing on TRRC and 
those on the service list. At that point, the commenting party will be 
added to the service list. TRRC may file a reply to the comments on or 
before April 15, 2013.
    The Board's environmental review for this rail construction project 
is proceeding separately from our review of its transportation merits. 
Because the construction and operation of this project has the 
potential to result in significant environmental impacts, the Board's 
Office of Environmental Analysis (OEA) has determined that the 
preparation of an Environmental Impact Statement (EIS) is appropriate. 
OEA issued a notice to stakeholders and the public on October 22, 2012, 
announcing its intent to prepare the EIS and requesting comments on a 
draft scope of study. In November, OEA held scoping meetings in the 
project area to assist in defining the range of issues and alternatives 
to be considered in the EIS. Comments on the scope of the EIS must be 
submitted to OEA by January 11, 2013. Subsequently, OEA will issue a 
final scope of study for the EIS. Following the completion of scoping, 
OEA will prepare and issue a Draft EIS for public review and comment. 
The comments received will be addressed in a Final EIS. The Draft and 
Final EISs (including the public comments) will serve as the basis for 
OEA's recommendations to the Board regarding whether, from an 
environmental perspective, TRRC's supplemental application should be 
granted, granted with environmental conditions, or denied.
    The Board's decision on TRRC's supplemental application then will 
take into consideration both the transportation merits and the 
environmental impacts of constructing and operating the proposed line.
    This decision will not significantly affect either the quality of 
the human environment or the conservation of energy resources.
    Board decisions and notices are available on our Web site at 
www.stb.dot.gov.

    Decided: January 4, 2013.

    By the Board, Chairman Elliott, Vice Chairman Begeman, and 
Commissioner Mulvey.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2013-00242 Filed 1-8-13; 8:45 am]
BILLING CODE 4915-01-P