4714 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

DMA name Call sign City State Analog 

channel 

Network 

affiliation 

Post-transition DTV 

channel 

Pre-transition DTV 

channel 

Not on 

MSTV list 

May be 

shortspaced 

Indicated 

interest in 

participating 

Wichita-Hutchinson 

Plus.

KSCW .... WICHITA ................ KS .......... 33 ................ 31 31 ................ ** 

Wichita-Hutchinson 

Plus.

KMTW .... HUTCHINSON ....... KS .......... 36 ................ 35 35 ................ ** 

Wilkes Barre-Scranton.WNEP .... SCRANTON ........... PA .......... 16 ABC ....... 49 49 ................ ** 

Wilkes Barre-Scranton.WYOU .... SCRANTON ........... PA .......... 22 CBS ....... 13 13 ................ ** 

Wilmington .............. WWAY ... WILMINGTON ........ NC .......... 3 ABC ....... 46 46 

Wilmington .............. WECT .... WILMINGTON ........ NC .......... 6 NBC ....... 54 44 

Wilmington .............. WSFX .... WILMINGTON ........ NC .......... 26 Fox ......... 30 30 

Wilmington .............. WPXU .... JACKSONVILLE .... NC .......... 35 ................ 34 34 

Yakima-PascoRchlnd-Knnwck.KEPR ..... PASCO .................. WA ......... 19 CBS ....... 18 18 

Yakima-PascoRchlnd-Knnwck.KNDO .... YAKIMA ................. WA ......... 23 NBC ....... 16 16 

Yakima-PascoRchlnd-Knnwck.KNDU ..... RICHLAND ............. WA ......... 25 NBC ....... 26 26 ................ ** 

Yakima-PascoRchlnd-Knnwck.KIMA ...... YAKIMA ................. WA ......... 29 CBS ....... 33 33 ................ ** 

Yakima-PascoRchlnd-Knnwck.

KTNW .... RICHLAND ............. WA ......... 31 PBS ........ 38 38 

Yakima-PascoRchlnd-Knnwck.KAPP ..... YAKIMA ................. WA ......... 35 ABC ....... 14 14 ................ ** 

Yakima-PascoRchlnd-Knnwck.KVEW .... KENNEWICK ......... WA ......... 42 ABC ....... 44 44 ................ ** 

Yakima-PascoRchlnd-Knnwck.KYVE ..... YAKIMA ................. WA ......... 47 PBS ........ 21 21 

Youngstown ............ WFMJ .... YOUNGSTOWN .... OH ......... 21 NBC ....... 20 20 ................ ** 

Youngstown ............ WKBN .... YOUNGSTOWN .... OH ......... 27 CBS ....... 41 41 ................ ** 

Yuma-El Centro ...... KVYE ..... EL CENTRO .......... CA .......... 7 ................ 22 22 ................ ** 

Zanesville ............... WHIZ ...... ZANESVILLE ......... OH ......... 18 NBC ....... 40 40 

Appendix B: List of Commenters 

Comments 

1. Association of Public Safety 

Communications Officials International, Inc. 

(‘‘APCO’’) (filed 12/29/08). 

2. Association of Public Television Stations 

(filed 1/5/09). 

3. Bethel Broadcasting, Inc. (filed 1/2/09). 

4. Coalition of Organizations for Accessible 

Technology (filed 1/8/09). 

5. Cohen, Dippell, Everist, P.C. (‘‘CDE’’) 

(filed 1/5/09). 

6. Community Broadcasters Association 

(‘‘CBA’’) (filed 1/2/09). 

7. Fox Television Stations, Inc, WJBK 

License Inc., KDFW License, Inc. (filed 1/5/ 

09). 

8. Free State Communications, LLC (filed 

1/5/09). 

9. Hearst-Argyle Television Incorporated 

(filed 1/8/09). 

10. James Bellaire (filed 1/5/09). 

11. James Edwin Whedbee (filed 12/31/08). 

12. KSPS–TV/Robert J. Wyatt (filed 1/5/ 

09). 

13. Mark J. Colombo (filed 1/7/09). 

14. Named State Broadcasters Associations 

(filed 1/5/09). 

15. National Association of Broadcasters 

(‘‘NAB’’) and Association for Maximum 

Service Television, Inc. (‘‘MSTV’’) (Joint 

Comments filed 1/5/09). 

16. Rocky Mountain Public Broadcasting 

Network, Inc. (filed 1/5/09). 

17. Sunbelt Multimedia Co. (filed 1/5/09). 

18. Telecinco, Inc. (filed 1/5/09). 

19. The University of North Carolina (filed 

1/5/09). 

20. Thomas C. Smith (filed 1/5/09). 

21. William M. Sanford (1/6/09). 

22. WJXT–TV (filed 1/12/09). 

23. WSIL–TV, Inc. (filed 1/5/09). 

Reply Comments 

1. Bonneville International Corporation 

(filed 1/8/09). 

2. CDE (filed 1/8/09). 

3. Hank Bovis (filed 1/9/09). 

4. KTBS, Inc (filed 1/8/09). 

5. NAB and MSTV (Joint Reply filed 1/8/ 

09). 

6. National Cable and Telecommunications 

Association (‘‘NCTA’’) (filed 1/8/09). 

7. Ohio Association of Broadcasters, 

Virginia Association of Broadcasters and 

North Carolina Association of Broadcasters 

(Joint Reply filed 1/8/09). 

8. University of South Florida (filed 1/8/ 

09). 

9. WXXI Public Broadcasting Council (filed 

1/8/09). 

[FR Doc. E9–1543 Filed 1–26–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Parts 1002, 1011, and 1155 

[STB Ex Parte No. 684] 

Solid Waste Rail Transfer Facilities 

AGENCY: Surface Transportation Board. 

ACTION: Interim Rules with Request for 

Comments. 

SUMMARY: The Clean Railroads Act of 

2008 (Clean Railroads Act or CRA), 

enacted to remove from the jurisdiction 

of the Surface Transportation Board 

(Board or STB) the regulation of solid 

waste rail transfer facilities, except as 

provided for in that act. The Clean 

Railroads Act adds new sections to title 

49 of the United States Code which 

limit the Board’s authority with regard 

to solid waste rail transfer facilities to 

the issuance of land-use-exemption 

permits. Upon receiving a land-useexemption permit, a solid waste rail 

transfer facility need not comply with 

state laws, regulations, orders, and other 

requirements affecting the siting of the 

facility, as those state laws, regulations, 

orders and requirements would be 

preempted under these circumstances. 

The Clean Railroads Act also requires 

that the Board issue procedures 

governing the submission and review of 

applications for land-use-exemption 

permits and related filings. 

DATES: The interim rules are effective on 

January 27, 2009, and are applicable 

beginning January 14, 2009. Comments 

on the interim rules are due by February 

23, 2009. Reply comments are due by 

March 23, 2009. 

ADDRESSES: Comments may 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 at the EFILING link on the Board’s Web site, at 

http://www.stb.dot.gov. Any person 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4715 

1New section 10908 also includes a number of 

definitions, clarifies that the Clean Railroads Act 

does not affect railroad operations with respect to 

non-waste commodities, and also establishes that a 

railroad’s common carrier obligation does not apply 

to a solid waste rail transfer facility that does not 

have the required federal and state permits, 

including a land-use-exemption permit, if 

necessary. See sections 10908(c)–(e). 

2Specifically, the Clean Railroads Act requires 

that the regulations, which we are adopting today, 

include the following: 

(1) The information that must be provided in the 

application for a land-use exemption that explains 

how the facility will not pose an unreasonable risk 

to public health, safety, or the environment, see 

Rule 1155.22, ‘‘Contents of application.’’ 

(2) The information necessary to give notice to 

the public and give the public time to comment, 

including specific notice to the municipality where 

the facility is located, the state where it is located, 

and any Federal or State regional planning entity 

where it is located, see Rules 1155.20, ‘‘Notice of 

intent to apply for land-use-exemption permit,’’ 

1155.21, ‘‘Form of notice,’’ 1155.24, ‘‘Filings and 

service of application,’’ and 1155.25, ‘‘Participation 

in application proceedings.’’ 

(3) The Board’s review timeline, with the 

understanding that a final decision must be issued 

90 days from the close of the record, see Rule 

1155.27, ‘‘Board determination under 49 U.S.C. 

10909.’’ 

(4) The Board’s expedited timelines for petitions 

to modify, amend, or revoke land-use exemptions, 

see Rule 1155.25, ‘‘Participation in application 

proceedings.’’ 

Continued 

submitting a filing in the traditional 

paper format should send an original 

and 10 copies to: Surface Transportation 

Board, Attn: STB Ex Parte No. 684, 395 

E Street, SW., Washington, DC 20423– 

0001. 

Copies of written comments will be 

available for viewing and self-copying at 

the Board’s Public Docket Room, Room 

131, and will be posted to the Board’s 

Web site. 

FOR FURTHER INFORMATION CONTACT: 

Joseph H. Dettmar at (202) 245–0395. 

[Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339.] 

SUPPLEMENTARY INFORMATION: Section 

10501(b) of the Interstate Commerce 

Act, 49 U.S.C. 10501(b), specifically 

provides that both ‘‘the jurisdiction of 

the Board over transportation by rail 

carriers’’ and the ‘‘remedies provided 

under [49 U.S.C. 10101–11908] are 

exclusive and preempt the remedies 

under Federal or State law.’’ Prior to 

enactment of the Clean Railroads Act, a 

solid waste rail transfer facility owned 

by a rail carrier, in general, came within 

the Board’s jurisdiction as part of 

transportation by rail carrier. 

Accordingly, any form of state or local 

permitting or preclearance (including 

zoning) that, by its nature, could have 

been used to deny a railroad its ability 

to construct and conduct activities 

involving rail transportation at a solid 

waste rail transfer facility was 

preempted, as were other state laws that 

had the effect of managing or governing 

rail transportation. See 49 U.S.C. 

10501(b); N.Y. Susquehanna & W. Ry. 

Corp. v. Jackson, 500 F.3d 238, 252–55 

(3d Cir. 2007); Green Mountain R.R. v. 

Vermont, 404 F.3d 638, 641–43 (2d Cir. 

2005) (Green Mountain). 

The purpose of the Clean Railroads 

Act is to establish that solid waste rail 

transfer facilities, as defined in section 

10908(e)(1)(H), must now comply with 

all applicable federal and state 

requirements respecting pollution 

prevention and abatement, 

environmental protection and 

restoration, and protection of public 

health and safety, including laws 

governing solid waste, to the same 

extent as any similar solid waste 

management facility. The CRA gives the 

Board the power, if petitioned, to 

determine the placement of solid waste 

rail transfer facilities that are part of the 

national rail system through the 

issuance of land-use-exemption permits, 

which preempt state and local laws and 

regulations ‘‘affecting the siting’’ of such 

facilities. See 49 U.S.C. 10909(f). The 

CRA focuses on the Board’s jurisdiction 

and regulatory authority with regard to 

the siting of solid waste rail transfer 

facilities. It is not meant to affect a rail 

carrier’s transportation-related activities 

involving other commodities. See 49 

U.S.C. 10908(d). 

More specifically, section 602 of the 

Clean Railroads Act amends 49 U.S.C. 

10501(c)(2)(B) to remove the Board’s 

jurisdiction over solid waste rail transfer 

facilities, except for the authority to 

preempt state and local laws and 

regulations through the issuance of 

land-use-exemption permits as set forth 

in sections 603–04 of that act, which are 

codified at 49 U.S.C. 10908–09. The 

Clean Railroads Act leaves all other 

regulation of solid waste rail transfer 

facilities to the states. 

New section 10908, ‘‘Regulation of 

solid waste rail transfer facilities,’’ sets 

forth the general rule, in subsection (a), 

that a solid waste rail transfer facility 

must comply with federal and state laws 

regarding pollution, protection and 

restoration of the environment, and 

protection of public health and safety to 

the same extent that those laws would 

apply to any similar solid waste 

management facility that is not owned 

or operated by or on behalf of a rail 

carrier, except as provided in new 

section 10909, ‘‘Solid waste rail transfer 

facility land-use exemption authority.’’ 

Section 10908(b) sets forth transition 

rules for existing solid waste transfer 

facilities. An existing facility has 90 

days to comply with all applicable 

federal and state requirements except 

for those requiring permits, see section 

10908(b)(1), and 180 days to apply for 

all required federal and state non-siting 

permits, see section 10908(b)(2)(A). The 

facility can continue to operate during 

the pendency of the non-siting 

permitting process. See id. Existing 

facilities are not required to obtain state 

siting permits or a land-use-exemption 

permit from the Board. See section 

10908(b)(2)(B). However, the governor 

of the state in which an existing facility 

is located may file a petition with the 

Board under section 10908(b)(2)(B) to 

require the facility to apply for a federal 

land-use-exemption permit. The Board 

must accept a complete petition filed by 

the Governor or his or her designee.1

New section 10909, ‘‘Solid waste rail 

transfer facility land-use exemption,’’ 

prescribes the land-use-exemption 

authority of the Board regarding solid 

waste rail transfer facilities. The Board’s 

interpretation of section 10909(a) is 

discussed below. The Board may only 

grant a land-use-exemption permit if it 

determines that the facility does not 

pose an unreasonable risk to public 

health, safety or the environment at that 

location, after weighing, inter alia, the 

facility’s potential benefits to and 

adverse impacts on public health and 

safety, the environment, interstate 

commerce, and the transportation of 

solid waste by rail. See section 10909(c). 

Congress also listed a number of factors 

for the Board to consider in a land-useexemption proceeding. See section 

10909(d). When the Board issues a landuse-exemption permit, all state laws, 

regulations, orders, or other 

requirements affecting the siting of the 

facility are preempted with respect to 

that facility. See section 10909(f). 

However, the Board may require 

compliance with some or all of those 

laws and regulations as a condition of 

its approval of an application for a landuse-exemption permit. Id. 

The Clean Railroads Act also adds 

section 10910, ‘‘Effect on other statutes 

and authorities,’’ which preserves the 

state’s traditional police powers to 

require railroads to comply with 

environmental, public health, and 

public safety regulations so long as the 

regulations are not unreasonably 

burdensome to interstate commerce and 

do not discriminate against rail carriers. 

Pursuant to new section 10909(b), the 

Board must ‘‘publish procedures 

governing the submission and review of 

applications for solid waste rail transfer 

facility land-use exemptions,’’ not later 

than 90 days after the Clean Railroads 

Act became law. 49 U.S.C. 10909(b).2


sroberts on PROD1PC70 with RULES
4716 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

(5) The process for a State, under section 

10908(b)(2)(B), to petition the Board to require an 

existing facility to apply for a land-use exemption, 

see subpart B. 

(6) The process for a facility or rail carrier to 

petition the Board for a land-use exemption, see 

subpart C. 

See 49 U.S.C. 10909(b). We have set forth interim 

rules below, and invite comment on them from the 

public, recognizing that changes to the interim rules 

may have an effect on the Board’s narrative 

interpretation set forth in this notice, and vice 

versa. 

3A solid waste rail transfer facility in existence 

on October 16, 2008, is considered an existing 

facility. 

4See section 10908(e) for definitions of ‘‘solid 

waste’’ and related terms. 

5Section 10909(b)(5) references the process to be 

employed by the Board when a state petitions the 

Board ‘‘to require a solid waste transfer facility or 

a rail carrier that owns or operates such a facility 

to apply for a siting permit.’’ This language refers 

to the state petition process in section 

10908(b)(2)(B), which does not use ‘‘siting permit’’ 

to describe what the Board issues. Instead, it 

explains that the state ‘‘may petition the Board to 

require the facility to apply for a land-use 

exemption.’’ That section further states that the 

‘‘facility shall be required to have a Board-issued 

land-use exemption’’ to operate. 

Section 10909(e) states that a solid waste rail 

transfer facility ‘‘shall submit a complete 

application for a siting permit to the Board pursuant 

The purpose of this decision is to adopt 

interim rules, which will be codified as 

Part 1155 of Title 49 of the Code of 

Federal Regulations, as set forth below. 

The Board is seeking comment on these 

rules. 

We recognize, however, that central to 

understanding these interim rules is an 

understanding of how we interpret the 

Clean Railroads Act itself. Therefore, we 

discuss the definitions of a solid waste 

rail transfer facility and a land-useexemption permit; describe what the 

Clean Railroads Act requires of 

existing 3 and proposed solid waste rail 

transfer facilities; discuss the role of the 

Board; and describe the effects of the 

CRA and a land-use-exemption permit. 

We invite public comments on the 

interim rules and any other aspect of 

our interpretation of the Clean Railroads 

Act. 

The Board’s Interpretation of the Clean 

Railroads Act 

The Board recognizes that the intent 

of the Clean Railroads Act is to regulate 

solid waste rail transfer facilities at the 

federal and state levels in the same 

manner as non-railroad solid waste 

management facilities. The CRA 

preserves an important role for the 

Board by establishing a permitting 

process regarding siting. The following 

discussion is organized as follows: (1) 

What is a solid waste rail transfer 

facility; (2) what is a land-useexemption permit; (3) what must 

existing and proposed solid waste rail 

transfer facilities do to comply with the 

Clean Railroads Act; (4) what is the 

Board’s role under the Clean Railroads 

Act; and (5) what are the effects of the 

Clean Railroads Act and a land-useexemption permit. 

1. What Is a Solid Waste Rail Transfer 

Facility? 

The Clean Railroads Act applies only 

to solid waste rail transfer facilities. See 

section 10908(d). A solid waste rail 

transfer facility is defined as including 

the portion of a facility: (1) That is 

owned or operated by or on behalf of a 

rail carrier; (2) where solid waste is 

treated as a commodity transported for 

a charge; (3) where the solid waste is 

collected, stored, separated, processed, 

treated, managed, disposed of, or 

transferred; and (4) to the extent that 

solid-waste activity is conducted 

outside of the original shipping 

container. See section 10908(e)(1)(H)(i).4

The CRA does not apply to any facility 

or portion of a facility that does not 

meet all of these factors. Whether a 

facility would fall within the state’s or 

the Board’s jurisdiction appears to 

depend upon which of those criteria the 

facility does not meet. For example, if 

a facility meets all other criteria but is 

not owned or operated by or on behalf 

of a rail carrier, then the Board has no 

jurisdiction. If, on the other hand, a 

facility meets all other criteria but the 

activity conducted at the facility is 

limited to transferring solid waste in the 

original shipping container, then the 

facility falls under the Board’s general 

jurisdiction, not the Board’s jurisdiction 

under the Clean Railroads Act. 

The Clean Railroads Act excludes 

from the definition of solid waste rail 

transfer facility those facilities where 

the solid-waste activity is the direct 

transfer or transload of solid waste from 

a tank truck to a rail tank car. See 49 

U.S.C. 10908(e)(1)(H)(ii)(II). The Clean 

Railroads Act also excludes from the 

definition the portion of a facility where 

the only activity is railroad 

transportation of solid waste after the 

waste has been loaded for shipment in 

or on a rail car, including interchanging 

rail cars of solid waste. See 49 U.S.C. 

10908(e)(1)(H)(ii)(I). In such cases, 

assuming the facility, or portion thereof, 

meets the other necessary qualifications, 

it would be subject to the Board’s 

general jurisdiction over rail 

transportation and entitled to 

preemption from most state and local 

laws, including siting laws, under 

section 10501(b). See Green Mountain, 

404 F.3d at 641–43. 

Due to Congress’ intent to limit the 

definition of a solid waste rail transfer 

facility in this matter, we provide in 

Rule 1155.10, ‘‘Contents of petition,’’ 

that when a state petitions the Board to 

require an existing facility to apply for 

a land-use exemption, the Governor or 

his or her designee must submit a goodfaith certification that the subject 

facility meets the CRA’s definition of a 

solid waste rail transfer facility. 

A property could host different 

activities subject to varying levels of 

Board jurisdiction, or host activities not 

within the Board’s jurisdiction at all. 

Because of this possibility, the Board 

also requires in Rule 1155.22, ‘‘Contents 

of application,’’ that a solid waste rail 

transfer facility’s application contain a 

technical drawing of the facility with 

specific demarcations detailing what 

activities will be occurring in what 

portions of the facility. We will also 

require that a facility detail in its 

application those areas of the property 

that it has set aside for future growth, so 

that the land-use-exemption permit may 

include those areas where expansion 

may occur, without the need for 

modifying or amending the original 

permit. These requirements should help 

to clarify for states and the public at 

large the extent of a facility’s activities 

and use of its land. 

2. What Is a Land-Use-Exemption 

Permit? 

A land-use-exemption permit is the 

license that the Board will issue under 

the Clean Railroads Act to a qualifying 

solid waste rail transfer facility. To have 

federal preemption under the CRA, a 

new solid waste rail transfer facility 

must possess a land-use-exemption 

permit. Below we clarify two issues 

with regard to land-use-exemption 

permits to aid in understanding what a 

land-use-exemption permit is and what 

it does. 

A. ‘‘Land-Use Exemption’’ and ‘‘Siting 

Permit’’ 

The Clean Railroads Act uses two 

terms to describe the license that the 

Board may issue to a solid waste rail 

transfer facility. It uses the term ‘‘landuse exemption’’ when the carrier or 

facility involved seeks the license (see, 

e.g., new section 10909(a)(1), (b)(6)), and 

the term ‘‘siting permit’’ when the 

Governor of the state initiates the Board 

proceeding with respect to an existing 

facility (see new section 10909(a)(2), 

(b)(5)). The two instances in which the 

phrase ‘‘siting permit’’ is used to 

describe action of the Board are in 

section 10909(b)(5) and (e). Reading 

those references in context, we believe 

that Congress intended ‘‘siting permit’’ 

to be synonymous with ‘‘land-use 

exemption.’’ 5 For simplicity, we will 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4717 

to the procedures issued pursuant to subsection 

(b).’’ Section 10909(b) is titled ‘‘Land-Use 

Exemption Procedures’’ and requires the Board to 

issue procedures for submission and review of 

‘‘land-use exemptions.’’ Section 10909(e) also states 

that a state may not enforce certain laws affecting 

the siting of an existing facility until ‘‘the Board has 

approved or denied a permit pursuant to subsection 

(c).’’ Section 10909(c)(1) sets out the Board’s 

standard of review, stating ‘‘the Board may only 

issue a land-use exemption * * *’’ in certain 

instances; while section 10909(c)(2) states ‘‘the 

Board may not grant a land-use exemption * * *’’ 

in other circumstances. Though section 10909(e) 

uses ‘‘siting permit,’’ neither of the other statutory 

sections referenced therein uses that phrase. Rather, 

each employs ‘‘land-use exemption.’’ 

6The term ‘‘affecting the siting’’ also is used in 

section 10909(a)(1), ‘‘Authority,’’ which authorizes 

the Board to issue a land-use-exemption permit to 

a facility if, among other things, the Board ‘‘finds 

that a State, local, or municipal law, regulation, 

order, or other requirement affecting the siting of 

such facility’’ is either unreasonably burdensome to 

interstate commerce or discriminates against solid 

waste rail transfer facilities or rail carriers; and in 

section 10909(e), ‘‘Existing Facilities,’’ which bars 

a state from enforcing any ‘‘law, regulation, order, 

or other requirement affecting the siting of ’’ an 

existing solid waste rail transfer facility during the 

pendency of a facility’s land-use-exemption permit 

application with the Board. 

7We understand that ‘‘siting’’ laws or regulations, 

in general, may be read to refer to laws or 

regulations that traditionally are labeled as zoning 

or land-use laws. We recognize, however, that there 

also may be a variety of other laws, such as 

environmental laws, that are particular to solid 

waste rail transfer facilities and, when applied to 

a solid waste rail transfer facility, may affect the 

siting of the facility on a specific piece of property. 

8We note that, under the CRA, the laws, 

regulations, ordinances, orders, and other 

requirements of a political subdivision of a state, 

such as a locality or municipality, are not 

applicable to solid waste rail transfer facilities 

unless the state has specifically delegated such 

power to the political subdivision. See 49 U.S.C. 

10908(e)(3). 

9Subpart C contains the rules for applying for a 

land-use-exemption permit. 

use the single term ‘‘land-use-exemption 

permit’’ to refer to any license the Board 

may issue to a solid waste rail transfer 

facility. 

B. The Scope of the Phrase ‘‘Affecting 

the Siting’’ 

Central to an understanding of the 

extent of the Board’s authority under the 

Clean Railroads Act and the scope of a 

land-use-exemption permit is the 

interpretation of the phrase ‘‘affecting 

the siting.’’ Section 10909(f) preempts a 

solid waste rail transfer facility from 

compliance with ‘‘all State laws, 

regulations, orders, or other 

requirements affecting the siting’’ of a 

facility if the solid waste rail transfer 

facility is granted a land-use-exemption 

permit by the Board.6

We believe that the term ‘‘affecting 

the siting’’ was purposefully chosen to 

provide facilities an opportunity to 

invoke the land-use-exemption-permit 

process regardless of the traditional 

characterization of a particular law.7 But 

we also recognize that Congress did not 

want to shield solid waste rail transfer 

facilities from complying with the same 

types of pollution, public health and 

safety, and environmental laws with 

which other similar solid waste 

management facilities must comply. 

Until the Board gains experience 

applying the Clean Railroads Act, we 

are not prepared to determine what 

types of laws could ‘‘affect siting’’ for 

purposes of the Clean Railroads Act. As 

discussed below, applicants will be 

required to identify those laws that they 

believe affect the siting of a particular 

solid waste rail transfer facility, as will 

any public participant in the 

proceeding. 

3. What Actions Must Facilities Take To 

Comply With the Clean Railroads Act? 

If a facility, or portion thereof, may be 

categorized as a solid waste rail transfer 

facility, it must comply with all federal 

and state laws 8 regarding pollution, 

protection and restoration of the 

environment, and the protection of 

public health and safety, to the same 

extent as any similar solid waste 

management facility. See 49 U.S.C. 

10908(a). Compliance with state and 

local laws that affect the siting of a 

facility will not be necessary if the 

Board issues a land-use-exemption 

permit. See 49 U.S.C. 10909(f). 

However, pursuant to that section, the 

Board may require compliance with 

such state laws, regulations, orders, or 

other requirements as a condition of a 

land-use-exemption permit. Section 

10909(a) sets forth the circumstances in 

which an existing or proposed facility 

may obtain a Board-issued land-useexemption permit. 

In general, any facility may come to 

the Board under section 10909(a)(1). 

Indeed, the last clause of the 

subparagraph—permitting ‘‘a rail carrier 

that owns or operates such a facility [to] 

petition[ ] the Board for such an 

exemption’’—allows a rail carrier to 

petition the Board for a land-useexemption permit without first 

receiving an unsatisfactory result from a 

state agency, regardless of the facility’s 

characterization as existing or proposed. 

The rail carrier would not need to make 

any showing to the Board of 

unreasonable burden or discrimination 

prior to applying for a land-useexemption permit. Rather, the rail 

carrier could come in under Subpart C 

of our interim rules to obtain a land-useexemption permit.9

The first part of section 10909(a)(1) 

states, ‘‘the Board finds that a State, 

local, or municipal law, regulation, 

order, or other requirement affecting the 

siting of such facility unreasonably 

burdens the interstate transportation of 

solid waste by railroad, discriminates 

against the railroad transportation of 

solid waste and a solid waste rail 

transfer facility.’’ We believe that this 

clause contemplates a separate route for 

solid waste rail transfer facilities to 

come before the Board. It provides an 

opportunity to a facility that has first 

applied to the appropriate state agency 

for those state permits affecting the 

siting of a facility and that has received 

an unsatisfactory result to apply to the 

Board for a land-use-exemption permit. 

After receiving an unsatisfactory result 

from the state, a solid waste rail transfer 

facility could apply to the Board for a 

land-use-exemption permit. It must, 

however, make at least one of two 

showings with regard to the state’s 

action or the state law: (1) The state has 

placed an unreasonable burden on 

railroad transportation of solid waste, or 

(2) a state law discriminates against 

railroad transportation of solid waste 

and a solid waste rail transfer facility. 

The Board, prior to considering 

whether the solid waste rail transfer 

facility is an unreasonable risk to the 

public health, safety, or the 

environment under 10909(c)(1), would 

have to make an initial determination 

about the unreasonableness or 

discriminatory nature of the state action 

or law in question. Such an initial 

determination would be a predicate to 

any Board consideration of whether to 

grant or deny the application for a landuse-exemption permit. Rule 1155.23, 

‘‘Additional requirements when filing 

after an unsatisfactory result from a 

state, local, or municipal authority 

affecting the siting of the facility,’’ 

provides additional requirements for a 

facility to satisfy were it to apply to the 

Board in this manner. We believe one of 

the purposes of section 10909(a)(1) is to 

provide a facility with an opportunity to 

seek a land-use-exemption permit after 

receiving an unsatisfactory result from 

the state if the facility believes that the 

state is unreasonably burdening the 

interstate transportation of solid waste 

by railroad or is discriminating against 

the railroad transportation of solid 

waste and a solid waste rail transfer 

facility. 

It is important to note that a proposed 

facility might never come before the 

Board. If a proposed facility applies to 

the requisite state agency for all state 

permits affecting the siting and those 

permits are granted, the Board might 

never become involved in the process. 

Similarly, the Board would not become 

involved with state permits that do not 

affect the siting of the proposed facility, 

because the Board’s jurisdiction under 

the Clean Railroads Act only extends to 


sroberts on PROD1PC70 with RULES
4718 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

10For example, if an existing facility must receive 

state (non-siting) permits from five agencies, the 

existing facility may remain in operation until all 

five agencies have made their respective final 

decisions. If the state (non-siting) permits are all 

granted, the existing facility may continue to 

operate subject to the siting permit requirements 

discussed below. If any of those state (non-siting) 

permits are denied, the consequences set forth 

under the governing law(s) with regard to that 

permit would determine whether operations could 

continue. 

land-use-exemption permits. Regardless 

of whether a proposed facility comes 

before the Board or not, we note that, in 

order to lawfully operate, a proposed 

solid waste rail transfer facility will 

need to comply with all state laws, as 

described in section 10908(a), that do 

not affect the siting of a facility. 

As noted, existing solid waste rail 

transfer facilities have separate 

requirements they must meet under the 

Clean Railroads Act. To remain in 

operation, the CRA requires an existing 

facility to comply with all federal and 

state laws regarding pollution, 

protection and restoration of the 

environment, and the protection of 

public health and safety, except for 

permits, within 90 days, i.e., by January 

14, 2009. See 49 U.S.C. 10908(b)(1). For 

those state laws requiring permits, an 

existing facility need not possess any 

state (non-siting) permit to remain in 

operation if it has, in good faith, 

submitted an application to the proper 

state agency (or agencies) for each 

permit within 180 days of enactment, 

i.e., by April 14, 2009. See 49 U.S.C. 

10908(b)(2)(A)(i). After submitting a 

good-faith application, the existing 

facility may remain in operation until a 

final decision either approving or 

denying each one of those permits has 

been made.10 See 49 U.S.C. 

10908(b)(2)(A)(ii). 

If an existing facility already has a 

state siting permit, it need not take any 

further steps to remain in operation, 

aside from those described above 

regarding federal and state non-siting 

laws. See section 10908(b)(2)(B). If the 

existing facility does not have a state 

siting permit, it need not obtain any 

siting permits from the state or the 

Board to continue operations or to be 

considered in compliance with state 

land-use requirements, see 49 U.S.C. 

10908(b)(2)(B), unless the state, acting 

through the governor or his/her 

designee, petitions the Board to require 

that the solid waste rail transfer facility 

apply for a land-use-exemption permit 

from the Board. Once the state, acting 

through the governor or his/her 

designee submits a perfected petition, 

then the solid waste rail transfer facility 

must file an application with the Board 

and obtain a land-use-exemption permit 

to continue to operate. See 49 U.S.C. 

10909(a)(2), 10908(b)(2)(B). The 

contents of the petition that the state 

must file with the Board is set forth in 

Rule 1155.10, ‘‘Contents of petition.’’ 

This includes the identifying 

information for the facility and a 

certification by the state that the facility 

meets the definition of solid waste rail 

transfer facility set forth in the Clean 

Railroads Act. 

When a state petitions the Board, Rule 

1155.12, ‘‘Participation in petition 

proceedings,’’ allows 20 days for the 

subject facility to reply regarding the 

classification by the state of that facility 

as an existing facility under section 

10908(b). If the state’s classification is 

not challenged, or if the state prevails in 

showing that the facility is a solid waste 

rail transfer facility, the Board will grant 

the petition, and the facility will be 

required to obtain a Board-issued landuse-exemption permit pursuant to 

section 10909 to continue to operate. 

See 49 U.S.C. 10908(b)(2)(B). 

Upon the Board’s acceptance of a state 

petition, the existing facility will be 

required to submit a complete 

application for a Board-issued land-useexemption permit. See 49 U.S.C. 

10909(e). The process for submitting an 

application and the information to be 

contained therein are set forth in 

Subpart C of the interim rules. See 49 

U.S.C. 10909(b). During the time that an 

existing facility’s application is pending 

before the Board, the state would be 

preempted from enforcing any laws, 

regulations, orders, or other 

requirements affecting the siting of a 

facility. See 49 U.S.C. 10909(e). We read 

section 10909(e) in conjunction with 

section 10908(b)(2)(B) to allow an 

existing facility that is the subject of a 

state petition to continue its operations 

until a final decision on the land-useexemption-permit petition is made by 

the Board. See 49 U.S.C. 10908(b)(2)(B), 

10909(e). 

4. What Is the Board’s Role Under the 

Clean Railroads Act? 

The primary role of the Board under 

the Clean Railroads Act is to issue landuse-exemption permits for solid waste 

rail transfer facilities that meet the 

CRA’s standards. The Board may issue 

land-use-exemption permits only for 

solid waste rail transfer facilities that 

are or are proposed to be operated by or 

on behalf of a rail carrier. See 49 U.S.C. 

10909(a). A petition for such a land-useexemption permit could reach the Board 

in one of three ways: (1) A proposed 

facility has been denied its state 

application for a permit that affects the 

siting of a facility, or received an 

otherwise unsatisfactory result from the 

state, including inordinate delay, and 

that facility attempts to demonstrate, as 

noted above, that the state is placing an 

unreasonable burden on rail 

transportation of solid waste, or that the 

state is discriminating against railroad 

transportation of solid waste and the 

facility; (2) a rail carrier that owns or 

operates an existing facility or plans to 

own or operate a new facility petitions 

the Board for a land-use-exemption 

permit without first receiving an 

unsatisfactory result from the state; or 

(3) a state petitions the Board to require 

an existing facility to apply for a landuse-exemption permit. See 49 U.S.C. 

10909(a). 

Once the matter is before the Board, 

the Board may issue a land-useexemption permit if it finds the facility 

does not pose an unreasonable risk to 

public health, safety, or the 

environment. See 49 U.S.C. 10909(c)(1). 

To make this finding, the Board must 

weigh the facility’s potential benefits to 

and adverse impacts on public health, 

public safety, the environment, 

interstate commerce, and transportation 

of solid waste by rail. See 49 U.S.C. 

10909(c)(1). The Clean Railroads Act 

lists six factors the Board must consider 

in carrying out this balancing test, as 

follows: 

(1) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements of the State or State 

subdivision in which the facility is or 

will be located that are applicable to 

solid waste transfer facilities, including 

those that are not owned or operated by 

or on behalf of a rail carrier; 

(2) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements applicable to the property 

where the solid waste rail transfer 

facility is proposed to be located; 

(3) Regional transportation planning 

requirements developed pursuant to 

Federal and State law; 

(4) Regional solid waste disposal 

plans developed pursuant to State or 

Federal law; 

(5) Any Federal and State 

environmental protection laws or 

regulations applicable to the site; and 

(6) Any unreasonable burdens 

imposed on the interstate transportation 

of solid waste by railroad, or the 

potential for discrimination against the 

railroad transportation of solid waste, a 

solid waste rail transfer facility, or a rail 

carrier that owns or operates such a 

facility. 

49 U.S.C. 10909(d)(1)–(6). The Board 

also can consider any other factors it 

deems relevant. See 49 U.S.C. 

10909(d)(7). 

To assist us in weighing all of these 

considerations, we require, in Rule 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4719 

11While location on these lands of national 

interest is not a bar to the Board’s issuance of a 

land-use-exemption permit for an existing facility, 

it would still be a relevant factor under 49 U.S.C. 

10909(d)(7). 

1155.22, ‘‘Contents of application,’’ that 

the applicant organize its request in 

terms of (1) the Board’s standards for 

review of an application and (2) all of 

the factors the Board is required to 

consider under the CRA, including an 

explanation of how those factors relate 

to the subject facility. The applicant 

should also address any additional 

factors that it believes the Board should 

consider. 

The Clean Railroads Act precludes the 

Board from issuing a land-useexemption permit if the proposed 

facility, or any part of the facility, is to 

be located on land affiliated with the 

National Park System, the National 

Wildlife Refuge System, the National 

Wilderness Preservation System, the 

National Trails System, the National 

Wild and Scenic Rivers System, a 

National Reserve, or a National 

Monument. See 49 U.S.C. 10909(c)(2). 

Moreover, if the facility would be 

located on lands referenced in the 

Highlands Conservation Act for which a 

state has implemented a conservation 

management plan, the Board may issue 

a land-use-exemption permit for the 

proposed facility only if operation of the 

facility would be consistent with 

restrictions placed on those lands. See 

id. Because of these restrictions, the 

Board requires in Rule 1155.22, 

‘‘Contents of application,’’ that an 

applicant state whether the proposed 

solid waste rail transfer facility or any 

portion thereof is located on any of 

these lands of national interest.11 We 

also require in Rule 1155.20, ‘‘Notice of 

intent to apply for a land-use-exemption 

permit,’’ that an applicant notify the 

managing agency of each land group 

noted above of the facility’s proposed 

location so that those entities may 

verify, if they so chose, that the facility 

is not located on such lands. 

Though not specifically mentioned in 

the Clean Railroads Act, the Board 

recognizes that the issuance of a landuse-exemption permit is a major federal 

action under the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4321 et seq. The Board plans to 

conduct the appropriate level of 

environmental review for each land-useexemption permit proceeding, pursuant 

to the Council on Environmental 

Quality’s regulations, 40 CFR 1500– 

1508, and the Board’s own 

environmental regulations, 49 CFR 

1105. We also note that the Clean 

Railroads Act requires us to issue a final 

decision within 90 days of the close of 

the record, so that the time for issuance 

of a final decision will vary depending 

upon the type of environmental review 

conducted, if at all. See 49 U.S.C. 

10909(b)(3). 

The Clean Railroads Act also 

specifically authorizes the Board to set 

reasonable fees for permit applicants. 

See 49 U.S.C. 10909(h). Those fees may 

include the costs associated with 

retaining third-party consultants (which 

are not included in the filing fee). See 

id. We anticipate that the amount of 

Board resources that will be necessary 

for processing such applications, 

including legal and environmental 

analysis, will be similar to the amount 

of resources required in abandonment 

proceedings. Thus, we mirror the filing 

fees charged in abandonment 

proceedings as follows: (1) An 

application for a land-use-exemption 

permit for a facility not in existence as 

of October 16, 2008, will require a filing 

fee of $22,200 (the amount set for an 

abandonment application); and (2) an 

application for a land-use-exemption 

permit for a facility existing as of 

October 16, 2008, will require a filing 

fee of $6,300 (the amount set for an 

abandonment petition for exemption). 

We amend 49 CFR 1002.2(f), ‘‘Schedule 

of filing fees,’’ to reflect the new fees. 

The fees set forth here reflect only an 

estimate of the amount of resources that 

the Board will use to process land-useexemption permit applications. We will 

update these fees periodically based on 

the cost study formula set forth at 49 

CFR 1002.3(d) and other factors relevant 

to Board fee policy. See, e.g., 

Regulations Governing Fees for Services 

Performed in Connection with Licensing 

and Related Services—2008 Update, 

STB Ex Parte No. 542 (Sub-No. 15) (STB 

served June 18, 2008). 

5. What Are the Effects of a BoardIssued Land-Use-Exemption Permit and 

the Clean Railroads Act? 

The Clean Railroads Act only affects 

solid waste rail transfer facilities and 

not rail carriers’ transportation-related 

activities regarding other, non-waste 

commodities. See 49 U.S.C. 10908(d). 

When the Board grants a land-useexemption permit, a solid waste rail 

transfer facility is expressly preempted 

from complying with any and all State 

laws, regulations, orders, or other 

requirements affecting the siting of a 

facility except to the extent that the 

Board imposes as a condition of the 

exemption that the facility comply with 

particular state requirements. See 49 

U.S.C. 10909(f). A solid waste rail 

transfer facility must comply, however, 

with all federal laws and with all other 

state laws regarding pollution, 

protection and restoration of the 

environment, and the protection of 

public safety. 

We note that a land-use-exemption 

permit would not preempt a state’s 

traditional police powers to require 

compliance with state and local 

environmental, public health, and 

public safety standards that are not 

unreasonably burdensome to interstate 

commerce and do not discriminate 

against rail carriers. See 49 U.S.C. 

10910. Moreover, the Board may exempt 

a facility from compliance with state 

laws, regulations, orders, or other 

requirements affecting the siting of the 

facility only if it determines that a 

facility does not pose an unreasonable 

risk to public health, safety, or the 

environment. 

If the Board denies a land-useexemption permit application, the solid 

waste rail transfer facility would not 

come within the Board’s preemptive 

jurisdiction and the state’s laws, 

regulations, orders, or other 

requirements affecting the siting of a 

facility would govern that solid waste 

rail transfer facility. The facility would 

not be permitted to operate as a solid 

waste rail transfer facility at that 

location unless and until it obtained the 

necessary siting permits from the 

applicable state authority. 

The Clean Railroads Act contemplates 

the possible need for changes to a 

Board-issued land-use-exemption 

permit. Under section 10909(b)(4), a 

Board-issued land-use-exemption 

permit is subject to petitions to modify, 

amend, or revoke, which must be 

considered by the Board in an expedited 

process. The Board establishes 

procedures in Rule 1155.28, ‘‘Appellate 

Procedures.’’ For petitions to modify, 

amend, or revoke a land-use-exemption 

permit, the interim rules apply the 

Board’s normal standard of review for a 

petition to reopen an administratively 

final Board action. See 49 CFR 1115.4. 

The petition must demonstrate material 

error, new evidence, or substantially 

changed circumstances that warrant the 

requisite action sought. A Board 

decision will be due within 90 days 

after the record is complete. 

Finally, the Clean Railroads Act 

specifically provides that if a facility 

does not have the requisite state permits 

or a Board-issued land-use-exemption 

permit (if required), it is not a violation 

of the rail carrier’s common-carrier 

obligation for the carrier to deny service 

to a customer seeking solid waste rail 

transfer service at that facility. See 49 

U.S.C. 10908(c). We clarify here that, if 

a facility does have the requisite state 

permits and (if required) a Board-issued 


sroberts on PROD1PC70 with RULES
4720 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

land-use-exemption permit, then the 

common-carrier obligation would apply. 

Pursuant to 5 U.S.C. 605(b), the Board 

certifies that the proposed action will 

not have a significant economic effect 

on a substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

It is ordered: 

1. The interim rules are adopted. 

2. Comments on the interim rules are 

due by February 23, 2009, and reply 

comments are due by March 23, 2009. 

3. This decision is effective on 

January 14, 2009. 

Decided: January 14, 2009. 

By the Board, Chairman Nottingham, Vice 

Chairman Mulvey, and Commissioner 

Buttrey. 

Jeffrey Herzig, 

Clearance Clerk. 

List of Subjects 

49 CFR Part 1001 

Administrative practice and 

procedure. 

49 CFR Part 1011 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Organization 

and functions (Government agencies). 

49 CFR Part 1155 

Administrative practices and 

procedure, Railroad, Solid waste rail 

transfer facility. 

■ For the reasons set forth in the 

preamble, the Surface Transportation 

Board amends title 49, chapter X, of the 

Code of Federal Regulations as follows: 

PART 1002—FEES 

■ 1. The authority citation for part 1002 

continues to read as follows: 

Authority: 5 U.S.C. 552(a)(4)(A) and 553; 

31 U.S.C. 9701; and 49 U.S.C. 721. Section 

1002.1(g)(11) also issued under 5 U.S.C. 5514 

and 31 U.S.C. 3717. 

■ 2. Amend § 1002.2 by adding 

paragraphs (f)(16), (17), and (18) to read 

as follows: 

§ 1002.2 Filing fees. 

* * * * * 

(f) * * * 

Type of proceeding Fee 

* * * * * * * 

(16) An application for a land-use-exemption permit for a facility existing as of October 16, 2008 under 49 U.S.C. 10909 ................ 6,300 

(17) An application for a land-use-exemption permit for a facility not existing as of October 16, 2008 under 49 U.S.C. 10909 .......... 22,200 

* * * * * * * 

PART 1011—BOARD ORGANIZATION; 

DELEGATIONS OF AUTHORITY 

■ 3. The authority citation for part 1011 

continues to read as follows: 

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 

U.S.C. 701, 721, 11123, 11124, 11144, 14122, 

and 15722. 

■ 4. Amend § 1011.7 by adding 

paragraph (b)(17) to read as follows: 

§ 1011.7 Delegation of authority by the 

Board to specific offices of the Board. 

* * * * * 

(b) * * * 

(17) In land-use-exemption-permit 

application proceedings, whether to 

grant petitions for waiver of specific 

regulations listed in subpart C of 49 CFR 

part 1155. 

* * * * * 

■ 5. Part 1155 is added to read as 

follows: 

PART 1155—SOLID WASTE RAIL 

TRANSFER FACILITIES 

Subpart A—General 

Sec. 

1155.1 Purpose and scope. 

1155.2 Definitions. 

Subpart B—Procedures Governing 

Petitions To Require a Facility in Existence 

on October 16, 2008, To Apply for a LandUse-Exemption Permit 

1155.10 Contents of petition. 

1155.11 Filing and service of petition. 

1155.12 Participation in petition 

procedures. 

1155.13 Board determination with respect 

to a Governor’s petition. 

Subpart C—Procedures Governing 

Applications for a Land-Use-Exemption 

Permit and Petitions for Modifications, 

Amendments, or Revocations 

1155.20 Notice of intent to apply for a landuse-exemption permit. 

1155.21 Form of notice. 

1155.22 Contents of application. 

1155.23 Additional requirements when 

filing after an unsatisfactory result from 

a state, local, or municipal authority 

affecting the siting of the facility. 

1155.24 Filings and service of application. 

1155.25 Participation in application 

proceedings. 

1155.26 Transfer and termination of the 

land-use-exemption permit. 

1155.27 Board determinations under 49 

U.S.C. 10909. 

1155.28 Appellate procedures. 

Authority: 49 U.S.C. 10908, 49 U.S.C. 

10909, 49 U.S.C. 10910. 

Subpart A—General 

§ 1155.1 Purpose and scope. 

49 U.S.C. 10501(c)(2)(B) excludes 

solid waste rail transfer facilities from 

the Board’s jurisdiction except as 

provided under 49 U.S.C. 10908 and 

10909. Sections 10908 and 10909 

provide the Board authority to issue 

land-use-exemption permits for solid 

waste rail transfer facilities when 

certain conditions are met. 49 CFR 1155 

contains regulations concerning landuse-exemption permits and the Board’s 

standard for review. 

§ 1155.2 Definitions. 

(a) Unless otherwise provided in the 

text of these regulations, the following 

definitions apply in this part: 

(1) Commercial and retail waste 

means material discarded by stores, 

offices, restaurants, warehouses, 

nonmanufacturing activities at 

industrial facilities, and other similar 

establishments or facilities. 

(2) Construction and demolition 

debris means waste building materials, 

packaging, and rubble resulting from 

construction, remodeling, repair, and 

demolition operations on pavements, 

houses, commercial buildings, and other 

structures. 

(3) Household waste means material 

discarded by residential dwellings, 

hotels, motels, and other similar 

permanent or temporary housing 

establishments or facilities. 

(4) Industrial waste means the solid 

waste generated by manufacturing and 

industrial and research and 

development processes and operations, 

including contaminated soil, 

nonhazardous oil spill cleanup waste 

and dry nonhazardous pesticides and 

chemical waste, but does not include 

hazardous waste regulated under 

subtitle C of the Solid Waste Disposal 

Act (42 U.S.C. 6921 et seq.), mining or 

oil and gas waste. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4721 

(5) Institutional waste means material 

discarded by schools, nonmedical waste 

discarded by hospitals, material 

discarded by nonmanufacturing 

activities at prisons and government 

facilities, and material discarded by 

other similar establishments or 

facilities. 

(6) Municipal solid waste means 

household waste; commercial and retail 

waste; and institutional waste. 

(7) With the exception of waste 

generated by a rail carrier during track, 

track structure, or right-of-way 

construction, maintenance, or repair 

(including railroad ties and line-side 

poles) or waste generated as a result of 

a railroad accident, incident, or 

derailment, the term solid waste means 

construction and demolition debris; 

municipal solid waste; household 

waste; commercial and retail waste; 

institutional waste; sludge; industrial 

waste; and other solid waste, as 

determined appropriate by the Board. 

(8) Solid waste rail transfer facility— 

(i) Means the portion of a facility owned 

or operated by or on behalf of a rail 

carrier (as defined in 49 U.S.C. 10102) 

where solid waste, as a commodity to be 

transported for a charge, is collected, 

stored, separated, processed, treated, 

managed, disposed of, or transferred, 

when the activity takes place outside of 

original shipping containers; but (ii) 

Does not include— 

(A) The portion of a facility to the 

extent that activities taking place at 

such portion are comprised solely of the 

railroad transportation of solid waste 

after the solid waste is loaded for 

shipment on or in a rail car, including 

railroad transportation for the purpose 

of interchanging railroad cars containing 

solid waste shipments; or 

(B) A facility where solid waste is 

transferred or transloaded solely from a 

tank truck directly to a rail tank car. 

(9) Sludge means any solid, semisolid or liquid waste generated from a 

municipal, commercial, or industrial 

wastewater treatment plant, water 

supply treatment plant, or air pollution 

control facility exclusive of the treated 

effluent from a wastewater treatment 

plant. 

(b) Exceptions. Notwithstanding 

paragraph (a) of this section, the terms 

household waste, commercial and retail 

waste, and institutional waste do not 

include yard waste and refuse-derived 

fuel; used oil; wood pallets; clean wood; 

medical or infectious waste; or motor 

vehicles (including motor vehicle parts 

or vehicle fluff). 

(c) ‘‘Land-use-exemption permit’’ 

means the authorization issued by the 

Board pursuant to the authority of 49 

U.S.C. 10909(a) and includes the term 

‘‘siting permit’’ in 49 U.S.C. 10909(e). 

(d) ‘‘State laws, regulations, orders, or 

other requirements affecting the siting of 

a facility,’’ as used in 49 U.S.C. 10909(f) 

and 49 CFR 1155.27(d), include the 

requirements of a state or a political 

subdivision of a state, including a 

locality or municipality, affecting the 

siting of a facility. 

(e) ‘‘State requirements’’ as used in 49 

U.S.C. 10908 does not include the laws, 

regulations, ordinances, orders, or other 

requirements of a political subdivision 

of a state, including a locality or 

municipality, unless a state expressly 

delegates such authority to such 

political subdivision. 

Subpart B—Procedures Governing 

Petitions To Require a Facility in 

Existence on October 16, 2008, To 

Apply for a Land-Use-Exemption 

Permit 

§ 1155.10 Contents of petition. 

A petition to require a solid waste rail 

transfer facility in existence on October 

16, 2008, to apply for a land-useexemption permit, submitted by the 

Governor of the state or that Governor’s 

designee, shall contain the following 

information and shall be attested to by 

a person having personal knowledge of 

the matters contained therein: 

(a) The Governor’s name. 

(b) The state’s name and the name of 

any agency filing on behalf of the 

Governor. 

(c) The full address of the solid waste 

rail transfer facility, or, if not available, 

the city, state, and United States Postal 

Service ZIP code. 

(d) The name of the rail carrier that 

owns or operates the facility. 

(e) A good-faith certification that the 

facility qualifies as a solid waste rail 

transfer facility pursuant to the 

definition in 49 U.S.C. 10908(e)(1)(H) 

and 49 CFR 1155.2 both as of the filing 

date of the petition and on October 16, 

2008. 

(f) Relief sought (that the rail carrier 

that owns or operates the facility be 

required to apply for a land-useexemption permit). 

(g) Name, title, and address of 

representative of petitioner to whom 

correspondence should be sent. 

§ 1155.11 Filing and service of petition. 

(a) When the petition is filed with the 

Board, the petitioner shall serve, by first 

class mail, a copy of the petition on the 

rail carrier that owns or operates the 

solid waste rail transfer facility and on 

the facility if the address is different 

than the rail carrier’s address. A copy of 

the certificate of service shall be filed 

with the Board at the same time. 

(b) Upon the filing of a petition, the 

Board will review the petition and 

determine whether it conforms to all 

applicable regulations. If the petition is 

substantially incomplete or its filing 

otherwise defective, the Board will 

reject the petition for stated reasons by 

order (which order will be 

administratively final) within 15 days 

from the date of filing of the petition. 

§ 1155.12 Participation in petition 

proceedings. 

(a) An interested person may file a 

reply to the petition challenging the 

Governor’s classification of the facility 

as a solid waste rail transfer facility and 

may offer evidence to support its 

contention. The petitioner will have an 

opportunity to file a rebuttal. 

(b) Filing and service of replies. 

(1) Any reply shall be filed with the 

Board (the Secretary, Surface 

Transportation Board, 395 E Street, SW., 

Washington, DC 20423) within 20 days 

of the filing with the Board of a petition 

to require a solid waste rail transfer 

facility in existence on October 16, 

2008, to apply for a land-use-exemption 

permit. 

(2) A copy of the reply shall be served 

on petitioner or its representative at the 

time of filing with the Board. Each filing 

shall contain a certificate of service. 

(3) Any rebuttal to a reply shall be 

filed and served by petitioner no later 

than 30 days after the filing of the 

petition. 

§ 1155.13 Board determination with 

respect to a Governor’s petition. 

(a) The following schedule shall 

govern the process for Board 

consideration of and decisions regarding 

a petition to require a solid waste rail 

transfer facility in existence on October 

16, 2008, to apply for a land-useexemption permit, from the time the 

petition is filed until the time of the 

Board’s decision on the merits: 

Day 0—Petition filed. 

Day 20—Due date for reply. 

Day 30—Due date for response to reply. 

(b) The Board shall accept the 

Governor’s complete petition on a 

finding that the facility qualifies as a 

solid waste rail transfer facility pursuant 

to the definition in 49 U.S.C. 

10908(e)(1)(H) and 49 CFR 1155.2 both 

on the filing date of the petition and on 

October 16, 2008. In the decision 

accepting the Governor’s petition, the 

Board shall require that the rail carrier 

that owns or operates the facility file a 

land-use-exemption-permit application 

within 120 days of the service date of 

the decision. 


sroberts on PROD1PC70 with RULES
4722 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

Subpart C—Procedures Governing 

Applications for a Land-UseExemption Permit 

§ 1155.20 Notice of intent to apply for a 

land-use-exemption permit. 

(a) Filing and publication 

requirements. An applicant (i.e., a solid 

waste rail transfer facility, or the rail 

carrier that owns or operates the facility) 

shall give Notice of Intent to file a landuse-exemption permit application by 

complying with the following 

procedures: 

(1) Filing. Applicant must serve its 

Notice of Intent on the Board in the 

format prescribed in 49 CFR 1155.21. 

The Notice of Intent shall be filed in 

accordance with the time requirements 

of paragraph (b) of this section. 

(2) Service. Applicant must serve, by 

first-class mail (unless otherwise 

specified), its Notice of Intent upon: 

(i) The Governor of the state where 

the facility is located; 

(ii) The state agency/ies and/or 

municipal agency/ies that would have 

permitting or review authority over the 

solid waste rail transfer facility absent 

49 U.S.C. 10908 and 10909, these 

regulations, and federal preemption 

under 49 U.S.C. 10501(b); and 

(iii) The appropriate managing 

government agencies responsible for the 

groups of land listed in 49 U.S.C. 

10909(c)(2). 

(3) Newspaper publication. Applicant 

must publish its Notice of Intent at least 

once during each of 3 consecutive 

weeks in a newspaper of general 

circulation in each county in which any 

part of the proposed or existing facility 

is located. 

(b) Time limits. (1) The Notice of 

Intent must be served on the parties 

discussed above at least 15 days, but not 

more than 30 days, prior to the filing of 

the land-use-exemption permit 

application; 

(2) The three required newspaper 

Notices must be published within the 

30-day period prior to the filing of the 

application; and 

(3) The Notice of Intent must be filed 

with the Board either concurrently with 

service on the required parties or when 

the Notice is first published (whichever 

occurs first). 

(c) Environmental and Historic 

Reports. Applicant for a solid waste rail 

transfer facility, other than those in 

existence on October 16, 2008, must 

also submit an Environmental Report 

containing the information described at 

49 CFR 1105.7 at least 20 days prior to 

filing an application. Applicants shall 

concurrently file an historic report 

containing the information at 49 CFR 

1105.8 if that regulation is applicable. 

The environmental and historic 

reporting requirements that would 

otherwise apply are waived, however, if 

the applicant hires a third-party 

consultant, the Board’s Section of 

Environmental Analysis (SEA) approves 

the scope of the consultant’s work, and 

the consultant works under SEA’s 

supervision to prepare any 

environmental documentation that 

might be warranted. In such a case, the 

consultant acts on behalf of the Board, 

working under SEA’s direction to 

collect the needed environmental 

information and compile it into a draft 

of the appropriate environmental 

documentation (an Environmental 

Impact Statement or a more limited 

Environmental Assessment). See 49 CFR 

1105.10(d). 

§ 1155.21 Form of notice. 

The Notice of Intent to petition for a 

land-use-exemption permit shall be in 

the following form: 

STB Finance Docket No. ll(Sub-No. 

ll) 

Notice of Intent to petition for a land-useexemption permit for a solid waste rail 

transfer facility. 

(Name of Applicant) gives notice that on or 

about (insert date application will be filed 

with the Board) it intends to file with the 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, an application 

for a land-use-exemption permit for a solid 

waste rail transfer facility as defined in 49 

U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2. 

The solid waste rail transfer facility is located 

at (full address, or, if not available, provide 

city, state, and United States Postal Service 

ZIP code). The solid waste rail transfer 

facility is located on a line of railroad known 

as ll at milepost ll between (station 

name) at milepost ll and (station name) at 

milepost ll. 

The reason(s) for the proposed permit 

application is (are) ll (explain briefly and 

clearly the activities undertaken, or proposed 

to be undertaken, by the applicant at the 

solid waste rail transfer facility. Also 

describe the specific state and local laws, 

regulations, orders or other requirements 

affecting siting from which the applicant 

requests entire or partial exemption that 

would otherwise apply and any action that 

the state, local, or municipal authority has 

taken affecting the siting of the facility.) 

(Include this paragraph for facilities not in 

existence on October 16, 2008). Applicant 

certifies that, based on information in its 

possession, the facility is not proposed to be 

located on land within any unit of or land 

affiliated with the National Park System, the 

National Wildlife Refuge System, the 

National Wilderness Preservation System, the 

National Trails System, the National Wild 

and Scenic Rivers System, a National 

Reserve, or a National Monument. Applicant 

further certifies that the facility is not 

proposed to be located on lands referenced 

in The Highlands Conservation Act, Public 

Law No. 108–421, for which a state has 

implemented a conservation management 

plan (or, The facility is consistent with the 

restrictions implemented by (state) under 

The Highlands Conservation Act, Pub. L. No. 

108–421, placed at its proposed location). 

Any relevant documentation in the railroad’s 

possession on these issues will be made 

available promptly to those requesting it. 

(For facilities already in existence on 

October 16, 2008, address the extent to which 

the facility is or is not located in any of these 

types of lands, and to the extent that it is so 

located address any relevant criteria, and so 

certify.) 

The application containing the information 

set forth at 49 CFR 1155.22 will include the 

applicant’s entire case for the granting of the 

land-use-exemption permit (case in chief). 

Any interested person, after the application 

is filed on (insert date), may file with the 

Surface Transportation Board written 

comments concerning the application within 

45 days after the application is filed. 

Comments should contain that party’s 

entire case in support or opposition 

including the following, as appropriate: 

(1) Name, address, and organizational 

affiliation. 

(2) A statement describing commenter’s 

interest in the proceeding, including 

information concerning the organization or 

public interest the commenter represents. 

(3) Specific reasons why commenter 

supports or opposes the application, taking 

into account the standards for the Board’s 

review and consideration provided in 49 

U.S.C. 10909(c), (d) and these regulations. 

(4) If the applicant files under 49 CFR 

1155.23, specific reasons why commenter 

supports or opposes the Board’s accepting 

the application. 

(5) Any rebuttal of material submitted by 

applicant. 

Written comments will be considered by 

the Board in determining what disposition to 

make of the application. Parties seeking 

information concerning the filing of 

comments should refer to 49 CFR 1155.25. 

Written comments should indicate the 

proceeding designation STB Finance Docket 

No.ll (Sub-No. ll) and must be filed 

with the Secretary, Surface Transportation 

Board, 395 E Street, SW., Washington, DC 

20423, no later than (insert the date 45 days 

after the date applicant intends to file its 

application). A copy of each written 

comment shall be served upon the 

representative of the applicant (insert name, 

address, and phone number). Except as 

otherwise set forth in 49 CFR 1155, each 

document filed with the Board must be 

served on all parties to the land-useexemption-permit proceeding. 49 CFR 

1104.12(a). 

Persons seeking further information 

concerning land-use-exemption-permit 

procedures may contact the Surface 

Transportation Board or refer to 49 U.S.C. 

10908, 10909, and the full land-useexemption-permit regulations at 49 CFR 

1155. 

A copy of the application will be available 

for public inspection on or after (insert date 

the land-use-exemption-permit application is 

to be filed with Board). The applicant shall 

furnish a copy of the application to any 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4723 

interested person proposing to file a 

comment, upon request. 

Questions concerning potential 

environmental issues may be directed to the 

Board’s Section of Environmental Analysis. 

Where the preparation of environmental 

documentation under the National 

Environmental Policy Act is warranted, a 

Draft Environmental Impact Statement (EIS) 

(or more limited Environmental Assessment 

(EA), if appropriate) prepared by the Section 

of Environmental Analysis will be issued for 

public review and comment and served upon 

all parties of record and upon any agencies 

or other persons who commented during its 

preparation. The comments received will be 

addressed in the Final EIS or Post EA. The 

Board will take into account the results of the 

environmental review and any final 

recommended environmental mitigation in 

deciding what action to take on the 

application. 

§ 1155.22 Contents of application. 

Applications for land-use-exemption 

permits shall contain the following 

information, including supporting 

documentation: 

(a) General. (1) Exact name of 

applicant. 

(2) Whether applicant is a common 

carrier by railroad subject to 49 U.S.C. 

Subtitle IV, chapter 105. 

(3) Summary of why a land-useexemption permit is being sought. 

(4) The full address of the solid waste 

rail transfer facility, or, if not available, 

the city, state, and United States Postal 

Service ZIP code. 

(5) The line of railroad serving the 

facility, the milepost location of the 

facility, and the milepost and names of 

the stations that the facility is located 

between. 

(6) Name, title, and address of 

representative of applicant to whom 

comments should be sent. 

(7) Citation to all state, local, or 

municipal laws, regulations, orders, or 

other requirements affecting the siting of 

the solid waste rail transfer facility. 

(8) Copies of the specific state, local, 

or municipal laws, regulations, orders, 

or other requirements affecting the 

siting of the solid waste rail transfer 

facility from which the applicant 

requests entire or partial exemption that 

would otherwise apply, any publicly 

available material providing the criteria 

in the application of the regulations, 

and a description of any action that the 

state, local, or municipal authority has 

taken affecting the siting of the facility. 

(9) Certification that the laws, 

regulations, orders or other 

requirements from which the applicant 

requests exemption are not based on 

Federal laws, regulations, orders, or 

other requirements. 

(10) Certification that the facility 

complies with all state, local, or 

municipal laws, regulations, orders, or 

other requirements affecting the siting of 

the facility except those for which it 

seeks exemption. 

(11) Citation to the regulations listed 

in 49 CFR 1155.27(c)(1) through (5). 

(12) Certification that the applicant 

has applied or will apply for the 

appropriate state permits not affecting 

siting. 

(13) For facilities not in existence as 

of October 16, 2008, certification that 

the facility is not proposed to be located 

on land within any unit of or land 

affiliated with the National Park System, 

the National Wildlife Refuge System, 

the National Wilderness Preservation 

System, the National Trails System, the 

National Wild and Scenic Rivers 

System, a National Reserve, or a 

National Monument. For facilities in 

existence as of October 16, 2008, state 

whether the facility is located in any of 

these types of lands. 

(14) For facilities not in existence as 

of October 16, 2008, certification that 

the facility is not proposed to be located 

on lands referenced in The Highlands 

Conservation Act, Public Law No. 108– 

421, for which a state has implemented 

a conservation management plan, or, 

that the facility is consistent with the 

restrictions implemented by the 

applicable state under The Highlands 

Conservation Act, Public Law No. 108– 

421, placed on its proposed location. 

For facilities in existence as of October 

16, 2008, state whether the facility is 

located in any of these lands, and, if so, 

address whether the facility is 

consistent with the restrictions placed 

on the location by the applicable state 

under that law. 

(15) A detailed description of the 

operations and activities that will occur/ 

are occurring at the facility. 

(16) Detailed map showing the subject 

facility on a sheet not larger than 8 x 

101⁄2 inches, drawn to scale, and with 

the scale shown thereon. The map must 

show, in clear relief, the exact location 

of the facility on the rail line and its 

relation to other rail lines in the area, 

highways, water routes, population 

centers and any geographic features that 

should be considered in determining 

whether the facility would pose an 

unreasonable risk to public health, 

safety, or the environment, pursuant to 

49 U.S.C. 10909(c)(1). 

(17) Detailed drawing of the subject 

facility on a sheet not larger than 8 x 

101⁄2 inches, drawn to scale, and with 

the scale shown thereon. The drawing 

must show, in clear relief, the exact 

boundaries of the facility, structures at 

the facility, the location and type of the 

operations taking place at the facility, 

the proposed traffic configuration for 

the solid waste entering and leaving the 

facility, reasonable future expansion 

that the applicant requests to be 

included in the land-use-exemption 

permit, any geographic features that 

should be considered in determining 

whether the facility would pose an 

unreasonable risk to public health, 

safety, or the environment, pursuant to 

49 U.S.C. 10909(c)(1), and any other 

information that the applicant would 

like to show. 

(b) A statement that sets forth in 

detail the reasons why the Board should 

grant a land-use-exemption permit to 

the applicant. The applicant shall 

organize its request in terms of the 

standards for the Board’s review and 

consideration provided in 49 U.S.C. 

10909(c), (d) and these regulations. 

(c) Environmental impact. The 

applicant shall certify that it has 

submitted an environmental and/or 

historical report containing the 

information in 49 CFR 1105.7 and 

1105.8, if one is required, to allow the 

Board’s Section of Environmental 

Analysis to determine whether 

preparation of environmental 

documentation is warranted, and, if so, 

whether a full Environmental Impact 

Statement or a more limited 

Environmental Assessment should be 

prepared. 

(d) Additional information. The 

applicant shall submit such additional 

information to support its application as 

the Board may require. 

(e) Draft Federal Register Notice. The 

applicant shall submit a draft notice of 

its application to be published by the 

Board. In addition to the regular number 

of copies that must be filed with the 

Board, the applicant must submit a copy 

of the draft notice as data contained on 

a computer diskette compatible with the 

Board’s current word processing 

capabilities. The Board will publish the 

notice in the Federal Register within 20 

days of the application’s filing with the 

Board. The draft notice shall be in the 

following form: 

STB Finance Docket No.ll (Sub-No. 

ll) 

Notice of Application for a land-useexemption permit for a solid waste rail 

transfer facility. 

On (insert date application was filed with 

the Board) (name of applicant) filed with the 

Surface Transportation Board, 395 E Street, 

SW., Washington, DC 20423, an application 

for a land-use-exemption permit for a solid 

waste rail transfer facility. The solid waste 

rail transfer station is located at (full address, 

or, if not available, provide city, state, and 

United States Postal Service ZIP code). The 

solid waste rail transfer facility is located on 

a line of railroad known as llat milepost 

llbetween (station name) at milepost 

lland (station name) at milepost ll. The 


sroberts on PROD1PC70 with RULES
4724 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

application explains why applicant believes 

its request for a land-use-exemption permit 

should be granted. 

(Include this paragraph for facilities not in 

existence on October 16, 2008). The facility 

is not proposed to be located on land within 

any unit of or land affiliated with the 

National Park System, the National Wildlife 

Refuge System, the National Wilderness 

Preservation System, the National Trails 

System, the National Wild and Scenic Rivers 

System, a National Reserve, or a National 

Monument. The facility is not proposed to be 

located on lands referenced in The Highlands 

Conservation Act, Public Law No. 108–421, 

for which a state has implemented a 

conservation management plan (or, The 

facility is consistent with the restrictions 

implemented by (state) under The Highlands 

Conservation Act, Pub. L. No. 108–421, 

placed on its proposed location). Any 

relevant documentation in the railroad’s 

possession will be made available promptly 

to those requesting it. 

(For facilities already in existence on 

October 16, 2008, address the extent to which 

the facility is or is not located in any of these 

types of lands, and to the extent that it is so 

located address any relevant criteria, and so 

certify.) 

Any interested person may file with the 

Surface Transportation Board written 

comments concerning the application within 

45 days of the filing of the application. 

Persons seeking information concerning the 

filing of comments should refer to 49 CFR 

1155.25. 

Written comments should indicate the 

proceeding designation STB Finance Docket 

No. ll (Sub-No. ll) and must be filed 

with the Secretary, Surface Transportation 

Board, 395 E Street, SW., Washington, DC 

20423, no later than (insert the date 45 days 

after the date applicant intends to file its 

application). A copy of each written 

comment shall be served upon the 

representative of the applicant (insert name, 

address, and phone number). Except as 

otherwise set forth in 49 CFR 1155, each 

document filed with the Board must be 

served on all parties to the land-useexemption permit proceeding. 49 CFR 

1104.12(a). 

Persons seeking further information 

concerning land-use-exemption-permit 

procedures may contact the Surface 

Transportation Board or refer to 49 U.S.C. 

10908, 10909, and the full land-useexemption-permit regulations at 49 CFR 

1155. 

A copy of the application is available for 

public inspection. The applicant shall 

furnish a copy of the application to any 

interested person proposing to file a 

comment, upon request. 

Questions concerning potential 

environmental issues may be directed to the 

Board’s Section of Environmental Analysis. 

Where the preparation of environmental 

documentation under the National 

Environmental Policy Act is warranted, a 

Draft Environmental Impact Statement (EIS) 

(or more limited Environmental Assessment 

(EA), if appropriate) prepared by the Section 

of Environmental Analysis will be issued for 

public review and comment and served upon 

all parties of record and upon any agencies 

or other persons who commented during its 

preparation. The comments received will be 

addressed in the Final EIS or Post EA. The 

Board will take into account the results of the 

environmental review and any final 

recommended environmental mitigation in 

deciding what action to take on the 

application. 

(f) Verification. The original 

application shall be executed and 

verified in the form set forth below by 

an officer of the applicant having 

knowledge of the facts and matters 

relied upon. 

Verification 

State of ll ss. 

County of ll 

ll (Name of affiant) makes oath and says 

that (s)he is the ll (title of affiant) of the 

ll (name of applicant) applicant herein; 

that (s)he has been authorized by the 

applicant (or as appropriate, a court) to verify 

and file with the Surface Transportation 

Board the foregoing application in STB 

Finance Docket No. ll (Sub-No. ll); that 

(s)he has carefully examined all of the 

statements in the application as well as the 

exhibits attached thereto and made a part 

thereof; that (s)he has knowledge of the facts 

and matters relied upon in the application; 

and that all representations set forth therein 

are true and correct to the best of his/her 

knowledge, information, and belief. 

(Signature) 

Subscribed and sworn to before me ll in 

and for the State and County above named, 

this ll day of ll, 20ll. 

My commission expires ll. 

§ 1155.23 Additional requirements when 

filing after an unsatisfactory result from a 

State, local, or municipal authority affecting 

the siting of the facility. 

(a) When an applicant has previously 

sought permission from the applicable 

state, local, or municipal authority and 

received an unsatisfactory result, such 

as inordinate delay, affecting the siting 

of the facility, the applicant may 

petition the Board to accept an 

application for a land-use-exemption 

permit. The applicant shall address in 

its petition why applicant believes it 

can make the showing required in 49 

CFR 1155.23(b). The petition shall be 

filed simultaneously with the land-useexemption permit application. 

(b) Standard for review. The Board 

will not consider a land-use-exemptionpermit application regarding laws, 

regulations, or other requirements upon 

which the applicant has received an 

unsatisfactory result from a state, local, 

or municipal authority, unless the Board 

finds that the laws, regulations, or other 

requirements affect the siting of the 

facility, on their face or as applied, 

either 

(1) Unreasonably burden the interstate 

transportation of solid waste by railroad, 

or 

(2) Discriminate against the railroad 

transportation of solid waste and a solid 

waste rail transfer facility. 

§ 1155.24 Filings and service of 

application. 

(a) The applicant shall tender with its 

application an affidavit attesting to its 

compliance with the notice 

requirements of 49 CFR 1155.20. The 

affidavit shall include the dates of 

service, posting, and newspaper 

publication of the Notice of Intent. 

(b) When the application is filed with 

the Board, the applicant shall serve, by 

first-class mail, a copy on the Governor 

of the state where the facility is located, 

and the state, local, and/or municipal 

agency/ies that would have permitting 

or review authority of the solid waste 

rail transfer facility if there were no 

federal preemption. A copy of the 

certificate of service shall be filed with 

the Board at the same time. 

(c) The applicant shall promptly 

furnish by first class mail a copy of the 

application to any interested person 

proposing to file a written comment 

upon request. A copy of the certificate 

of service shall be filed with the Board 

at the same time. 

(d)(1) Upon the filing of a land-useexemption-permit application, the 

Board will review the application and 

determine whether it conforms to all 

applicable regulations. If the application 

is substantially incomplete or its filing 

otherwise defective, the Board shall 

reject the application for stated reasons 

by order (which order will be 

administratively final) within 20 days 

from the date of filing of the application. 

If the Board does not reject the 

application, notice of the filing of the 

application shall be published in the 

Federal Register by the Board, through 

the Director of the Office of Proceedings, 

within 20 days of the filing of the 

application. 

(2) An applicant may seek waiver of 

specific regulations listed in subpart C 

of this part by filing a petition for 

waiver with the Board. A decision by 

the Director of the Office of Proceedings 

granting or denying a waiver petition 

will be issued within 30 days of the date 

the petition is filed. Appeals from the 

Director’s decision will be decided by 

the entire Board. If waiver is not 

obtained prior to the filing of the 

application, the application may be 

subject to rejection. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4725 

§ 1155.25 Participation in application 

proceedings. 

(a) Public participation. (1) 

Comments. Interested persons may 

become parties to a land-use-exemptionpermit proceeding by filing written 

comments with the Board within 45 

days of the filing of the application. 

Comments should contain the following 

information, as appropriate: 

(i) Name, address, and organizational 

affiliation. 

(ii) A statement describing 

commenter’s interest in the proceeding, 

including information concerning any 

organization or public interest it 

represents; and 

(iii) Specific reasons why commenter 

supports or opposes the application, 

taking into account the standards for the 

Board’s review and consideration set 

forth in 49 U.S.C. 10909(c), (d) and 49 

CFR part 1155. 

(iv) If the applicant files under 49 CFR 

1155.23, specific reasons why the 

commenter supports or opposes the 

Board considering the application. 

(v) Any rebuttal to the evidence and 

argument submitted by applicant. 

(vi) Any State, local, or municipal 

law, regulation, order, or other 

requirement affecting the siting of the 

facility not included in the application 

and any argument concerning its 

bearing on the merits of the application 

in terms of the standards for the Board’s 

review and consideration set forth in 49 

U.S.C. 10909(c), (d) and 49 CFR part 

1155. 

(b) Filing and service of written 

comments, along with evidence and 

argument, and rebuttals. (1) Written 

comments shall be filed with the Board 

(addressed to the Secretary, Surface 

Transportation Board, 395 E Street, SW., 

Washington, DC 20423) within 45 days 

of the filing with the Board of a landuse-exemption permit application. An 

original and 10 copies of each written 

comment shall be filed with the Board. 

A copy of each written comment shall 

be served on applicant or its 

representative at the time of filing with 

the Board. Each filing shall contain a 

certificate of service. 

(2) Rebuttals to written comments 

shall be filed and served by applicants 

no later than 60 days after the filing of 

the application. An original and 10 

copies of such replies shall be filed with 

the Board. 

§ 1155.26 Transfer and termination of a 

land-use-exemption permit. 

(a) A land-use-exemption permit will 

be transferred to an acquiring rail carrier 

without the need for a new application 

for a land-use-exemption permit if the 

rail line associated with the solid waste 

rail transfer facility is transferred to 

another rail carrier or to an entity 

formed to become a rail carrier pursuant 

to authority granted by the Board under 

49 U.S.C. 10901, 10902, or 11323. When 

seeking Board authority under 49 U.S.C. 

10901, 10902, or 11323, the applicant(s) 

should specifically advise the Board of 

the intended transfer. 

(b) When a carrier plans to cease 

using a facility as a solid waste rail 

transfer facility, or when a facility is 

transferred to any party in any manner 

other than that described in 49 CFR 

1155.26(a), the entity that received the 

land-use-exemption permit must notify 

the Board in writing no later than 60 

days prior to the proposed cessation or 

transfer. Upon receipt of that notice, the 

Board will publish notice in the Federal 

Register that the land-use-exemption 

permit will be terminated on the 60th 

day unless otherwise ordered by the 

Board. 

§ 1155.27 Board determinations under 49 

U.S.C. 10909. 

(a) Procedural schedule. (1) The 

following schedule shall govern the 

process for Board consideration and 

decisions in land-use-exemption permit 

application proceedings from the time 

the application is filed until the time of 

the Board’s decision on the merits: 

Day 0—Application filed, including 

applicant’s case in chief. 

Day 20—Due date for Notice of Application 

to be published in the Federal Register. 

Day 45—Due date for comments. 

Day 60—Due date for applicant’s rebuttal. 

(2) A decision on the merits will be 

due 90 days after a full record is 

developed, including the appropriate 

environmental review, if any. 

(b) Standard for review. (1) The Board 

will issue a land-use-exemption permit 

only if it determines that the facility at 

the existing or proposed location would 

not pose an unreasonable risk to public 

health, safety, or the environment. In 

deciding whether a solid waste rail 

transfer facility that is or proposed to be 

constructed or operated by or on behalf 

of a rail carrier poses an unreasonable 

risk to public health, safety, or the 

environment, the Board shall weigh the 

particular facility’s potential benefits to 

and the adverse impacts on public 

health, public safety, the environment, 

interstate commerce, and transportation 

of solid waste by rail. 

(2) The Board will not grant a landuse-exemption permit for a solid waste 

rail transfer facility proposed to be 

located on land within any unit of or 

land affiliated with the National Park 

System, the National Wildlife Refuge 

System, the National Wilderness 

Preservation System, the National Trails 

System, the National Wild and Scenic 

Rivers System, a National Reserve, or a 

National Monument. 

(3) The Board will not grant a landuse-exemption permit for a solid waste 

rail transfer facility proposed to be 

located on land within any unit of or 

land affiliated with lands referenced in 

The Highlands Conservation Act, Public 

Law No. 108–421, for which a state has 

implemented a conservation 

management plan, if operation of the 

facility would be inconsistent with 

restrictions placed on such land. 

(4) A land-use-exemption permit will 

not exempt a state requirement that a 

rail carrier comply with an 

environmental, public health, or public 

safety standard that falls under the 

traditional police powers of the state 

unless the requirement is unreasonably 

burdensome to interstate commerce or 

discriminates against rail carriers. 

(5) A land-use-exemption permit will 

only exempt state, local, or municipal 

laws, regulations, orders, or other 

requirements affecting the siting of the 

solid waste rail transfer facility. 

(c) Considerations. The Board will 

consider and give due weight to the 

following, as applicable: 

(1) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements of the state or state 

subdivision in which the facility is or 

will be located that are applicable to 

solid waste transfer facilities, including 

those that are not owned or operated by 

or on behalf of a rail carrier; 

(2) The land-use, zoning, and siting 

regulations or solid waste planning 

requirements applicable to the property 

where the solid waste rail transfer 

facility is proposed to be located; 

(3) Regional transportation planning 

requirements developed pursuant to 

Federal and state law; 

(4) Regional solid waste disposal 

plans developed pursuant to Federal or 

state law; 

(5) Any Federal and State 

environmental protection laws or 

regulations applicable to the site; 

(6) Any unreasonable burdens 

imposed on the interstate transportation 

of solid waste by railroad, or the 

potential for discrimination against the 

railroad transportation of solid waste, a 

solid waste rail transfer facility, or a rail 

carrier that owns or operates such a 

facility; and 

(7) Any other relevant factors, as 

determined by the Board. 

(d) If the Board grants a land-useexemption permit to a solid waste rail 

transfer facility, all State laws, 

regulations, orders, or other 

requirements affecting the siting of a 

facility are preempted with regard to 


sroberts on PROD1PC70 with RULES
4726 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

that facility. A Board issued land-useexemption permit may require 

compliance with such State laws, 

regulations, orders, or other 

requirements. 

§ 1155.28 Appellate procedures. 

General rule. Petitions to modify, 

amend, or revoke land-use-exemption 

permits shall be decided in accordance 

with the Board’s normal standard of 

review for petitions to reopen 

administratively final Board actions at 

49 CFR 1115.4. The petition must 

demonstrate material error, new 

evidence, or substantially changed 

circumstances that warrant the 

requested action, and is subject to these 

additional conditions: 

(a) An entity that petitions for a 

modification or amendment requesting 

an expansion of federal preemption or 

the facility’s operations or physical size 

is subject to the notice and application 

requirements in this subpart C. The 

language of the notifications shall be 

modified to note that the petition is for 

a modification or amendment. 

(b) The Board will approve or deny 

petitions to modify, amend, or revoke a 

land-use-exemption permit within 90 

days after the full record for the petition 

is developed. 

[FR Doc. E9–1304 Filed 1–26–09; 8:45 am] 

BILLING CODE 4915–01–P 


sroberts on PROD1PC70 with RULES