Tongue River Railroad Company, Construction and Operation of the Western Alignment in Rosebud and Big Horn Counties, Montana

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Finance Docket No. 30186 (Sub-No. 3)]

Tongue River Railroad Company, Construction and Operation of the

Western Alignment in Rosebud and Big Horn Counties, Montana

AGENCY: Surface Transportation Board.

ACTION: Notice of Intent to Prepare a Supplement to the Final

Environmental Impact Statement and Request for Comments.

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SUMMARY: On April 27, 1998, the Tongue River Railroad Company (TRRC)

filed an application with the Surface Transportation Board (Board)

under 49 U.S.C. 10901 and 49 CFR 1150.1-10 seeking authority to

construct and operate a 17.3-mile line of railroad in Rosebud and Big

Horn Counties, Montana, known as the ``Western Alignment.'' The line

that is the subject of this application is an alternative routing for

the portion of the 41-mile Ashland to Decker, Montana rail line that

was approved by the Board on November 8, 1996 in Finance Docket No.

30186 (Sub-No. 2), referred to as the ``Four Mile Creek Alternative.''

1

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\1\ Petitions for review of the November 8, 1996 decision were

filed in the Ninth Circuit in Northern Plains Resource Council, Inc.

Et. Al. v. STB, No. 97-70037 (filed Jan. 7, 1997) (NPRC). The court

proceedings are being held in abeyance pending the conclusion of

this proceeding.

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To evaluate and consider the potential environmental impacts that

might result from the construction and operation of this new alignment,

the Board's Section of Environmental Analysis (SEA) will prepare a

Supplement to the Final Environmental Impact Statement in Finance

Docket No. 30186 (Sub-No. 2) (Supplement). Comments are requested from

interested parties regarding the scope of the environmental issues

associated with the proposed construction and operation of the Western

Alignment that should be addressed in the Supplement.

DATES: Written comments on the scope of potential environmental issues

are due August 24, 1998 (45 days). TRRC may reply within 15 days

thereafter.

ADDRESSES: Send an original and 10 copies of comments referring to STB

Finance Docket No. 30186(Sub-No. 3) to: Surface Transportation Board,

Office of the Secretary, Case Control Unit, 1925 K Street, NW,

Washington, DC 20423-0001, Attention: Dana G. White, Section of

Environmental Analysis.

FOR FURTHER INFORMATION CONTACT: Dana White, (202) 565-1552 (TDD for

the hearing impaired: (202) 565-1695).

SUPPLEMENTARY INFORMATION:

Background

In its original application filed on June 2, 1983 in Finance Docket

No. 30186 and Finance Docket No. 30186 (Sub-No. 1), TRRC sought

approval from the Interstate Commerce Commission (ICC, now the Surface

Transportation Board or Board) for the construction and operation of 89

miles of railroad between Miles City, MT and two termini located near

Ashland, MT (Tongue River I). TRRC explained that the proposed rail

line would serve future coal mines in the Ashland area, and connect

with what is now the Burlington Northern and Santa Fe Railroad

Company's main line at Miles City for shipment of the coal to eastern

and western destinations. In a decision served May 9, 1986, the ICC

approved the application subject to several conditions, including

environmental mitigation conditions that were recommended in the

environmental impact statement (EIS) prepared by the ICC's

environmental staff, now the Section of Environmental Analysis (SEA).

On June 28, 1991, TRRC filed an application in Finance Docket No.

30186 (Sub-No. 2), seeking approval to construct and operate 41 miles

of railroad running south from the approved Miles City to Ashland rail

line to connect with existing rail lines serving the Decker, MT coal

mines (Tongue River II). SEA also prepared an EIS for this proceeding

and considered the potential environmental impacts associated with (1)

TRRC's preferred route,2 (2) the Four Mile Creek

Alternative,3 and (3) the no-build alternative. SEA's Draft

EIS (DEIS) was served on July 17, 1992, and comments were requested.

The DEIS preliminarily recommended the Four Mile Creek Alternative

because it would avoid the environmentally sensitive Tongue River

Canyon. Because of concerns raised during the commenting process, SEA

issued a Supplement to the DEIS (SDEIS) on March 17, 1994. In the

SDEIS, SEA preliminarily concluded that the Four Mile Creek Alternative

would have more adverse environmental consequences than TRRC's

preferred route, because it would involve more land disturbance from

cut and fill, erosion, deforestation, loss of habitat, and require more

fuel consumption and cause more air pollution during operations. After

the commenting process for the SDEIS, and further analysis and

evaluation, SEA issued a Final EIS (FEIS), on April 11, 1996. In it,

SEA explained that it had concluded that the Four Mile Creek

Alternative would be the environmentally preferable construction

option. SEA developed appropriate mitigation conditions to address

potential environmental impacts if either of the two construction

alternatives were approved.

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\2\ TRRC's preferred route would have extended south from

Ashland generally paralleling the Tongue River and passed just to

the west of the Tongue River Reservoir before connecting with a line

owned by the Spring Creek Coal Company, which provides access to the

Burlington Northern and Santa Fe Railway Company rail lines. TRRC's

preferred route would have included 5 bridges and a tunnel in the

approximately 6-mile section of the Tongue River Canyon located

between the Tongue River Dam and the confluence of Four Mile Creek

and the Tongue River.

\3\ The Four Mile Creek Alternative departs from TRRC's

preferred route at the confluence of the Four Mile Creek and the

Tongue River and heads in a westerly direction, climbing at a 2.31

percent grade away from the Tongue River valley floor. The route

winds south connecting with the Spring Creek spur at the same point

as TRRC's preferred route. The Four Mile Creek Alternative thus

avoids the Tongue River Canyon and Reservoir.

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In its decision served November 8, 1996, the Board approved the

construction and operation of the Four Mile Creek Alternative, and

imposed the mitigation measures recommended in the FEIS for that route.

Additionally, the Board reopened Tongue River I for the limited purpose

of requiring TRRC to complete construction of the entire line between

Miles City and Decker within 3 years.

By petition filed July 15, 1997, TRRC sought to reopen the Board's

November 1996 decision approving the construction and operation of the

Four Mile Creek Alternative and proposed that the Board consider a new

route, the Western Alignment, for a 17-mile portion of the approved

line instead of the Four Mile Creek Alternative. The Western Alignment

would roughly parallel TRRC's preferred route, but would lie slightly

to the west of that route and the Tongue River.4 TRRC

[[Page 37443]]

asserted that the Western Alignment, while still avoiding the

environmentally sensitive Tongue River Canyon, would also eliminate the

potential economic and operational problems TRRC claimed would make the

approved Four Mile Creek Alternative economically infeasible. Further,

TRRC stated that, compared to the Four Mile Creek Alternative, the

Western Alignment would involve less land acquisition, affect fewer

land owners, and, because of the more even grade, require less fuel

consumption. However, based on additional information later filed by

TRRC (see the discussion of TRRC's Environmental Report below), it

appears that the Western Alignment could involve more earth-moving

because of the rugged terrain, could cross more streams, could need

more water during construction, and could potentially adversely affect

big game movement, particularly pronghorn movement, during operations.

In a decision served December 1, 1997, the Board denied TRRC's petition

to reopen Tongue River II but stated that TRRC could file a new

application for the Western Alignment.

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\4\ The Western Alignment would generally follow a route between

TRRC's preferred alignment and the Four Mile Creek Alternative and

would be located on uplands out of the Tongue River Canyon. Moving

south along the approved route from Ashland, the Western Alignment

would begin at a point approximately 9 miles downstream from the

confluence of the Four Mile Creek and the Tongue River. It would

then cross the Tongue River approximately 3,000 feet downstream of

the existing county road river crossing. After crossing the river,

the Western Alignment would parallel the existing Tongue River Road

for 4 miles, then separate from the county road and climb away from

the valley floor. At Four Mile Creek, the Western Alignment would

cross the county road with a fifty-foot long bridge, and run

approximately 0.07 miles west of the Hosford residence and ranch

headquarters. From Four Mile Creek, the Western Alignment would

continue to climb away from the Tongue River Valley, then proceed to

connect with the existing Spring Creek rail spur. The Western

Alignment would avoid the environmentally sensitive Tongue River

Canyon and would incorporate at its steepest a grade of 0.93 percent

for a length of 2.4 miles.

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Current Application

TRRC has now filed an application in Finance Docket 30186 (Sub-No.

3) that requests authority under 49 U.S.C. 10901 to construct and

operate the Western Alignment as the final 17 miles of the Ashland to

Decker line (in lieu of the Four Mile Creek Alternative), to connect

with existing rail lines serving the Decker area coal mines (Tongue

River III). The remainder of the approved line from Ashland to Decker

would remain unchanged. In its Environmental Report that TRRC submitted

with its new application, TRRC focused on the immediate vicinity of the

Western Alignment and that alignment's two construction alternatives,

the Four Mile Creek Alternative and TRRC's preferred route.

5 In the Environmental Report, TRRC compares what it

believes to be the environmental impacts and costs of constructing and

operating the Western Alignment with the impacts and costs associated

with the relevant portions of the Four Mile Creek Alternative and

TRRC's preferred route. TRRC did not readdress the entire corridor

between Miles City and Decker because that corridor has already

received extensive environmental review in the environmental impact

statements prepared in Tongue River I and Tongue River II, both for the

Miles City to Ashland portion and the Ashland to Decker portion of this

corridor.

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\5\ We note that TRRC's preferred route is not really a

construction alternative at this point, since the Board approved the

Four Mile Creek Alternative, and not TRRC's preferred route, in its

November 1996 decision in Tongue River II.

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In preparing its Environmental Report, TRRC sought comments from a

number of Federal and state agencies and included their responses in

the report. Briefly, the U.S. Army Corps of Engineers (Corps) states

that, since all Corps' permits have expired, it will be reviewing

TRRC's proposal in its entirety. The Corps indicates that it believes

that the project, though analyzed in segments over a number of years,

is one continuous alignment. The Corps also suggests that environmental

conditions along the 130-mile rail route may have changed since the

earlier analyses were performed.

The Montana Department of Natural Resources and Conservation

expresses concern about the direction and flow of possible flood waters

and floodplain obstruction, water rights for dust control, blasting in

the vicinity of the Tongue River Dam, encroachments on county roads,

interference with dam rehabilitation, protection of historic resources,

and disturbance of survey monuments. The Montana Department of Fish,

Wildlife & Parks (MT FWP) acknowledges that the Western Alignment would

avoid operating costs and operational concerns associated with the Four

Mile Creek Alternative, but expresses concerns about the possible

impacts from the cut and fill requirements associated with the

construction of the Western Alignment and impacts to the nearby Tongue

River Reservoir state park. MT FWP also describes two issues that it

believes are unresolved from SEA's earlier environmental analysis: (1)

the preservation of the integrity of the fish hatchery at Miles City;

and (2) the status of the Multi-agency/Railroad Task Force set up in

Tongue River II. The Montana Department of Transportation (MT DOT), in

addition to expressing concerns about highway safety, requests re-

negotiation of a Memorandum of Understanding designed to protect state

highways. MT DOT also requests additional information about design

plans for the I-94 grade crossing at Miles City. The Montana Natural

Heritage Program has provided information about 5 species of concern

that may be present in the Western Alignment area.

No responses were included in TRRC's Environmental Report from

other agencies that TRRC contacted, including the U.S. Environmental

Protection Agency, the U.S. Fish and Wildlife Service, the National

Geodetic Survey, the National Park Service, the Montana Department of

Environmental Quality, and the Montana Department of Commerce.

The Northern Plains Resource Council (NPRC), in a separate filing

before the Board,6 has suggested that the Board should now

require another environmental analysis of the entire Miles City to

Decker corridor. NPRC disagrees with TRRC's view that the Board should

rely on its previous environmental analysis and focus its environmental

review on only the Western Alignment. Instead, NPRC suggests that there

are significant new changed environmental circumstances along the

entire route. For example, it points to the invalidation of the Montco

mine permit and the designation of the Tongue River as an impaired

waterbody under the Clean Water Act. In addition, NPRC alleges that

TRRC has significantly altered the alignments that were analyzed in

Tongue River I and Tongue River II as it begins to exercise the

authority previously granted in those proceedings.7 If that

were shown to be the case, it could be that the environmental analysis

of some of the previously approved line would no longer be adequate.

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\6\ See Northern Plains Resource Council, Inc.'s Reply in

Opposition to Petition to Establish Procedural Schedule, filed March

23, 1998.

\7\ This point also has been brought to SEA's attention

informally by various Montana state agencies.

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Also, in separate filings,8 Great Northern Properties

Limited Partnership suggests that the increased coal traffic projected

for the Western Alignment could affect the entire 130-mile route.

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\8\ See Great Northern Properties Limited Partnership's Replies

filed February 17, 1998, and May 20, 1998, and Motion to Compel

filed April 6, 1998.

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Environmental Review Process

The Council on Environmental Quality's (CEQ) rules implementing the

National Environmental Policy Act (NEPA) advise Federal agencies to

prepare supplements to an EIS where, as here, new information that is

relevant to environmental concerns is presented after a Final EIS has

been prepared. 9

[[Page 37444]]

See Marsh v. Oregon Natural Resources Council, 490 U.S. 360

(1989)(Marsh). Therefore, based on the CEQ rules, the Board's

environmental regulations at 49 CFR 1105.10(a)(5), and SEA's analysis

of all the information on the Western Alignment SEA has received to

date, SEA has determined that a Supplement to the EIS in Finance Docket

30186 (Sub-No. 2) (Supplement) is the appropriate means of reviewing

TRRC's application for the Western Alignment in Tongue River III.

Specifically, SEA will prepare a draft Supplement including preliminary

mitigation recommendations that will be available for a 45-day comment

period. Based on comments to the draft Supplement, and any further

analysis, SEA will prepare a final Supplement, which will include

appropriate environmental mitigation recommendations. The Board will

consider the draft and final Supplements, any comments, and other

available environmental information in rendering its decision on

whether to grant TRRC's new application. In its decision, the Board

will consider both economic and competitive transportation issues and

will impose any environmental conditions it deems appropriate.

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\9\ The CEQ regulations at 40 CFR 1502.9(c) state that

Agencies:

(1) Shall prepare supplements to either draft or final

environmental impact statements if:

(i) The agency makes substantial changes in the proposed action

that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information

relevant to environmental concerns and bearing on the proposed

action or its impacts.

(2) May also prepare supplements when the agency determines that

the purposes of the Act will be furthered by doing so.

(3) Shall adopt procedures for introducing a supplement into its

formal administrative record, if such a record exists.

(4) Shall prepare, circulate, and file a supplement to a

statement in the same fashion (exclusive of scoping) as a draft and

final statement unless alternative procedures are approved by the

Council.

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Request for Comments About the Scope of the Supplement

Although CEQ's rules implementing NEPA do not require public

scoping for the preparation of Supplements, SEA believes that it is

appropriate in this case to request comments regarding the

environmental scope of, and potential environmental concerns and issues

to be addressed in, the Supplement. 10 Typically, SEA's

environmental analysis includes potential impacts to safety, land use,

water quality, endangered species, wildlife habitat, cultural

resources, air, and noise that would result from the proposed

transaction. See 49 CFR 1105(7)(e). At a minimum, SEA intends in its

Supplement to analyze these potential environmental impacts associated

with the construction and operation of the Western Alignment and to

recommend appropriate mitigation to reduce or eliminate potentially

adverse impacts in these areas. We invite interested parties to address

any other potential impacts or areas of concern that are directly

related to the proposed construction and operation in Tongue River III,

and, therefore, should also be considered in the Supplement.

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\10\ As noted, this Notice provides a 45-day comment period.

TRRC may reply within 15 days thereafter.

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In addition, we invite comments about TRRC's suggestion that SEA's

environmental analysis should be limited to the Western Alignment,

TRRC's proposed construction alternatives for the Western Alignment,

and the no-build alternative, and that there is no reason to revisit

any of the earlier environmental analysis in Tongue River I and Tongue

River II. As discussed earlier, some agencies and other interested

parties have suggested that our approach should be broader. Moreover,

the question of when circumstances have changed so much as to make some

or all of a prior analysis stale is a difficult one. Therefore, we

request comments on whether the Supplement should focus only on the

environmental impacts associated with the Western Alignment and its

alternatives, or whether the Supplement should encompass environmental

concerns beyond the immediate geographic area of the Western Alignment

(i.e, take at least a limited look at the rest of the line recently

approved in Tongue River II, or perhaps even revise or update the

environmental analysis in Tongue River I if we are shown that the

environmental analysis has become outdated and is no longer

adequate).11

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\11\ The Western Alignment plainly is directly related to Tongue

River II because it is an alternative route for a part of that line.

In addition, while no stay of Tongue River II was sought from the

Board or in any court, petitions for judicial review are pending in

the Ninth Circuit in NPRC. It is more difficult to justify

revisiting Tongue River I, which has long been administratively

final and is not pending judicial review in any court. On the other

hand, as some agencies have contended, it can be argued that Tongue

River I, II and III cannot be considered separately and are all part

of the same line.

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The CEQ rules direct agencies to consider in any Supplement

``significant new circumstances or information relevant to

environmental concerns and bearing on the action or its impacts.'' 40

CFR 1502.9(c). At the same time, it is well settled that an agency need

not supplement an environmental impact statement every time new

information comes to light after the environmental impact statement is

finalized. Marsh, 490 U.S. at 373. Thus, the passage of time, in and of

itself, is not necessarily a reason to repeat or redo environmental

analysis. Id. Moreover, the environmental analysis in Tongue River I

and Tongue River II was thorough and comprehensive. Therefore, we

intend to use and rely on the data and analysis contained in our

previous environmental documents for the Miles City to Ashland line and

the Ashland to Decker line unless it is shown that, as a result of

significant new circumstances, what was done before is no longer

adequate. For example, it may be that certain portions, if not all, of

the previous environmental documentation should be updated or revised

to reflect significant new information (i.e, substantial alignment

changes) that has made our former analysis incomplete, out-of-date or

inapplicable.

Therefore, SEA has decided to seek comments on whether, to what

extent, and in what environmental areas, our prior environmental

documents may have become out-of-date. Specifically, we invite all

interested parties to provide us with information, including specific

examples, on whether any environmental conditions have changed

substantially since we completed our environmental analysis in Tongue

River I and Tongue River II. For example, have any substantial changes

occurred in land use, topography, wetlands or water resources,

endangered species, or cultural resources? If significant changes have

occurred that could affect the adequacy of the conclusions in our

previous environmental documents, such as NPRC's claim that TRRC may

now have altered significantly the proposed alignment from what was

analyzed in the prior environmental impact statements, we should be

informed of these changes now so that we can consider such evidence in

determining what the scope of the Supplement should be.

All comments should provide specific evidence to support the claims

that are made. We want to know with specificity why commenters believe

that environmental circumstances have changed significantly, possibly

affecting our previous analysis and conclusions and, therefore,

warranting further review in the Supplement.

SEA will also consult with affected Federal, state and local

agencies regarding the appropriate scope of the Supplement. Based on

its consideration of any comments to this Notice, and its evaluation

and review of all available information, SEA will then announce what

the scope of the Supplement will be.

As directed above, please submit comments by August 24, 1998 (45

days). TRRC may reply within 15 days thereafter.

[[Page 37445]]

By the Board, Elaine K. Kaiser, Chief, Section of Environmental

Analysis.

Vernon A. Williams,

Secretary.

[FR Doc. 98-18455 Filed 7-9-98; 8:45 am]

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