SURFACE TRANSPORTATION BOARD DECISION DOCUMENT | |||
Decision Information | |||
Docket Number:   | FD_30186_3 | ||
Case Title:   | TONGUE RIVER RAILROAD COMPANY, INC.--CONSTRUCTION AND OPERATION--WESTERN ALIGNMENT | ||
Decision Type:   | Decision | ||
Deciding Body:   | Entire Board | ||
Decision Summary | |||
Decision Notes:   | DECISION APPROVED TONGUE RIVER RAILROAD COMPANY, INC.’S APPLICATION FOR THE CONSTRUCTION AND OPERATION OF A 17.3-MILE LINE IN ROSEBUD AND BIG HORN COUNTIES, MT. THE BOARD ALSO MODIFIED THE ENVIRONMENTAL CONDITIONS IMPOSED ON EARLIER APPROVALS FOR THE CONSTRUCTION AND OPERATION OF 89 MILES OF RAIL LINE BETWEEN MILES CITY AND ASHLAND, MT, AND THE EXTENSION OF THAT LINE FROM ASHLAND TO DECKER, MT, VIA THE 41-MILE FOUR MILE CREEK ALTERNATIVE ROUTE. | ||
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Full Text of Decision | |||
36956 SERVICE DATE – OCTOBER 9, 2007 EB This decision will be printed in the bound volumes of the STB printed reports at a later date. SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 30186 (Sub-No. 3)[1] TONGUE RIVER RAILROAD COMPANY, INC.—CONSTRUCTION AND OPERATION—WESTERN ALIGNMENT Decided: October 5, 2007 The Board approves the construction
and operation of a 17.3-mile line in Rosebud and TABLE OF CONTENTS The
Environmental Review Process Major
Issues Discussed in the SEIS The
Western Alignment Versus the Four Mile Creek Alternative Additional
Focused Environmental Analysis for the Tongue River I and Tongue River II Lines d. Monitoring and Enforcement of Mitigation
Measures. Balancing
of Environmental and Transportation Concerns Appendix
B: Environmental Conditions In this
decision (Tongue River III), we grant the application of Tongue River Railroad
Company, Inc. (TRRC)[2] to
construct and operate a 17.3-mile rail line known as the Western Alignment. TRRC wishes to use this line in lieu of the
southernmost section of a 41-mile line between Ashland and Decker, MT, known as
the Four Mile Creek Alternative,[3]
that was authorized in Tongue River II,[4]
which is an extension of an 89-mile line from Miles City to Ashland, MT,
authorized in Tongue River I.[5] A map depicting the lines authorized in Tongue
River I and Tongue River II—neither of which has yet been built—and
the Western Alignment is attached as Appendix A. We find that the Western Alignment is a
superior route to the portion of the Four Mile Creek Alternative that it would
replace, as the Western Alignment is shorter and less steep and also minimizes
impacts to the The Board’s
Section of Environmental Analysis (SEA) has prepared a Supplemental
Environmental Impact Statement (SEIS), pursuant to the National Environmental
Policy Act, 42 U.S.C. 4321 et seq. (NEPA),[6] analyzing
the environmental impacts of the construction and operation of the Western
Alignment and comparing those to the previously authorized Four Mile Creek
Alternative.[7] As the SEIS shows, the Western Alignment would
be environmentally preferable, primarily because it would have a flatter grade (which
would serve to reduce fuel consumption and the potential for accidents) and
would require fewer at-grade public road crossings and less total acreage. Moreover, the environmental mitigation imposed
here will significantly reduce the potential impacts in areas where the Western
Alignment would otherwise have greater impacts than the Four Mile Creek
Alternative: earth work (cut and fill
and grading), soil erosion, sedimentation to the The SEIS also addresses TRRC’s proposed refinements to the alignments authorized in Tongue River I and Tongue River II, as well as changed environmental circumstances in the project area (such as changes at the Miles City Fish Hatchery, discussed below), and includes additional analysis requested by the cooperating agencies. Although SEA has determined that there will not be significant impacts that have not already been examined with respect to those lines, it recommends additional and modified mitigation measures to further minimize the potential environmental impacts of the construction and operation of the lines authorized in Tongue River I and Tongue River II. SEA recommends that, except as specifically noted, the environmental conditions it recommends here be applied uniformly to all three lines. We have thoroughly reviewed the SEIS, as well as the pertinent portions of the EISs prepared in Tongue River I and Tongue River II, and we concur in SEA’s analysis and recommendations. We conclude that, with the environmental conditions we are imposing, this project satisfies the standard of 49 U.S.C. 10901(c).[8] Therefore, we approve the Western Alignment, subject to the environmental conditions recommended by SEA, with slight modifications. We also revise and supplement the conditions previously imposed on the Board’s approval of the construction and operation of the Tongue River I and Tongue River II lines to further minimize the environmental impacts of those projects. A complete set of the mitigation measures we are imposing is attached as Appendix B. In 1983, TRRC sought authority from the Board’s predecessor, the Interstate Commerce Commission (ICC), to construct and operate 89 miles of rail line between Miles City, MT, and two termini located near Ashland, MT, to serve future coal mines in the Ashland area and to connect with a BNSF line at Miles City for shipment of coal to eastern and western destinations. In Tongue River I, the ICC authorized TRRC to construct and operate the line, using TRRC’s proposed alignment, subject to environmental conditions. In 1991,
TRRC sought authority to construct and operate a 41-mile rail line between In the meantime, another rail carrier, the Dakota,
Minnesota & Eastern Railroad Corporation (DM&E), has obtained authority
to build a new 280-mile rail line extension of its system to reach the Southern
Powder River Basin (SPRB) area of In 1997, TRRC asked the Board to reopen the Tongue River II proceeding to approve the Western Alignment as an alternate routing for the southernmost portion of the already approved Four Mile Creek Alternative. The Board denied that request without prejudice to the railroad filing a separate application for authority to construct and operate the proposed Western Alignment.[10] Accordingly, on April 27, 1998, TRRC filed the Tongue River III application that is before us here. After TRRC filed this application, the Board received comments and replies on the transportation aspects of the proposal and SEA began its environmental review. The environmental review was suspended, however, at the request of the railroad, from March 2000 to December 2002. In early 2003, TRRC expressed interest in moving forward and asked to update the record on the transportation aspects of its proposal.[11] TRRC filed supplemental evidence in May 2003; replies and comments were filed in November 2003; and TRRC filed its rebuttal in December 2003. TRRC seeks authority to
construct and operate the 17.3-mile Western Alignment as an alternative to the
southernmost portion of the Four Mile Creek Alternative routing approved in Tongue
River II. See map at Appendix
A. The Western Alignment would shorten
the route from Decker to TRRC asserts
that the Western Alignment would benefit the public as well. It notes that the regulatory constraints imposed
by the Clean Air Act have led to a significantly increased demand for
low-sulfur (“compliance”) coal. TRRC
plans to use this line to haul coal from mines near Decker, mines in Several potential coal recipients, including
Minnesota Power & Light Company, Commonwealth Edison Company, Midwest
Energy Resources Company, Northern States Power Company, and Detroit Edison, as
well as a number of local businesses and ranchers, submitted letters of support
for the application. The application
also is supported by BNSF, two former governors of BNSF states
that the new routing would benefit it and its utility customers because BNSF
would use TRRC as a bridge carrier for According to TRRC, two alternatives are being contemplated for the operator of the line. TRRC could be the operator, and TRRC has included an operating plan for this possibility. Alternatively, TRRC could arrange for BNSF to operate the line pursuant to an agreement with TRRC that has yet to be finalized. TRRC provided a general plan describing how BNSF would conduct such operations. (If BNSF is to be the operator, it would need to obtain authority from the Board to conduct the operations.) All of TRRC’s
stock is owned by TRR Limited Partnership, a TRRC plans to finance the construction of the proposed line by: (1) the raising of equity capital in the amount of $105 million and (2) the private placement of approximately $218 million of long-term debt secured by plant, property, and contracts for the movement of coal. The debt would take the form of a construction loan and first mortgage debt instrument.[18] To the extent that the capital construction cost estimate increases, the amount of capital and long-term debt would increase correspondingly. 2. Opponents A comment
in opposition to the application was filed on behalf of the United
Transportation Union-General Committee of Adjustment and United Transportation
Union-Montana State Legislative Board (UTU-GCA/MT). Also, John D. Fitzgerald filed a comment on
behalf of the United Transportation Union-General Committee of Adjustment and
Randall S. Knutson filed a comment on behalf of Local 951 of the United
Transportation Union. The labor
interests are concerned about job losses if traffic on BNSF’s more circuitous
northern route through Forsyth is rerouted as a result of this project. The City of Also, the
Northern Plains Resource Council, Inc. (NPRC), a coalition of ranchers,
environmentalists, and others, opposes the application. NPRC contends that TRRC’s forecasts for the
amount of coal that would be transported over the line are overstated. The organization argues that the project
would not spur the development of new mines in the A number of
ranchers, including Mark Fix and the Lower Tongue River Protection Association (a
body he heads), and other The
Northern Cheyenne Tribe and Native Action, Inc. raise concerns that the proposed
line would be close to the The Environmental Review Process As mentioned above, because the proposal here is to alter a portion of the line authorized in Tongue River II, SEA prepared a supplement to the EIS prepared for Tongue River II to address the proposed Western Alignment.[19] The SEIS also includes a limited reexamination of the EISs in Tongue River I and Tongue River II, where appropriate, to reflect changed circumstances or to accommodate the requests of the cooperating agencies. In preparing the SEIS, SEA
undertook extensive public outreach activities to give interested parties,
agencies, organizations, tribes and the general public the opportunity to learn
about the project, define issues, and actively participate in the environmental
process. In July 1998, SEA sought public
comment on the scope of the SEIS,[20]
and the extent to which refinement of the environmental analysis in Tongue
River I and Tongue River II might be warranted. In addition, BLM and MTDNRC conducted joint
scoping meetings in A Draft SEIS was issued in October 2004, which provided a thorough environmental analysis of the proposed Western Alignment and compared the potential impacts of that alignment to those of the previously authorized Four Mile Creek Alternative. The analysis considered a wide variety of issues, including: transportation and safety; plants; wildlife; land use; cultural and paleontological resources; hydrology and water quality; socioeconomics; low income and minority (“environmental justice”) communities; soils and geology; air quality; aesthetics; noise and vibration; recreation; energy; and cumulative and indirect effects. The environmental analysis also addressed impacts on Native Americans, including potential impacts to sites of religious or cultural importance. Where appropriate, the Draft SEIS updated the environmental analysis of Tongue River I and Tongue River II to reflect changed circumstances and to assist the cooperating agencies.[21] The Draft SEIS also suggested a comprehensive package of environmental mitigation measures (reflecting a combination of new, modified, and existing measures) to apply to the Tongue River I, Tongue River II, and Tongue River III rail lines.[22] As explained in the Draft SEIS, the
Western Alignment was the only feasible “build” alternative considered in the
SEIS,[23]
because in Tongue River II the Board had already rejected for
environmental reasons the only other “build” alternative to the Four Mile Creek
Alternative: the railroad’s preferred route.[24] The Draft SEIS also explained that, even if
the Tongue River III application were denied, the railroad already has authority,
under Tongue River I and Tongue River II, to construct and
operate a rail line from SEA
received 68 written comments on the Draft SEIS from a variety of agencies and
individuals.[26] In addition, SEA hosted public meetings in The Final
SEIS, issued in October 2006, responded to the concerns raised in the comments;
contained additional analysis of certain issues; updated information on SEA’s consultations;
and contained SEA’s final recommendations for environmental mitigation.[27] The Final SEIS also fully incorporates and
adopts by reference the analysis contained in the previously prepared EISs in Tongue
River I and Tongue River II, as applicable.
UTU-GCA/MT
argues that TRRC has failed to provide sufficient information about BNSF’s
involvement in this matter and raises concerns that the construction and operation
of the proposed line would divert traffic from BNSF’s northern route through Forsyth
to We see no
need for an oral hearing. TRRC has
provided all the information required of an applicant under the Board’s
regulations. The current record—which
includes the supplemental information filed in 2003, BNSF’s verified
statements, and the SEIS and public comments to it—is extensive and provides us
with sufficient information to properly consider this application. Moreover, all interested agencies,
organizations and members of the general public have had ample opportunity to
participate by filing written comments and attending the public With
respect to the concerns about BNSF’s role and involvement, the record clearly shows
that BNSF has been providing monetary and staff support for this project, and that
TRRC and BNSF have been discussing a potential arrangement whereby BNSF would
operate over the Decker to The fact that it is not clear at this point whether TRRC or BNSF would operate the line is not an impediment to our authorizing construction of the line and operations by TRRC.[30] We already have the information we need to authorize TRRC to conduct the proposed operations.[31] Should BNSF seek to operate the line, it would first need to obtain authority from the Board and update the general plan that is in the record describing how BNSF would conduct these operations. Under 49 U.S.C. 10901(c), the Board is directed to authorize the construction and operation of a proposed new line “unless the Board finds that such activities are inconsistent with the public convenience and necessity” (PC&N). This permissive licensing policy reflects a statutory presumption adopted in the ICC Termination Act of 1995 (ICCTA)[32] that new rail lines and new rail operations should be approved.[33] While the statute does not define “public convenience and necessity,” the agency has traditionally looked at whether: (1) the applicant is financially able to undertake the project and provide rail service; (2) there is a public demand or need for the proposed service; and (3) the proposal is in the public interest and will not unduly harm existing services.[34] The agency accords the interests of existing shippers substantial importance in assessing the PC&N in railroad construction proceedings.[35] UTU-GCA/MT and several other parties argue that this proceeding is governed by the pre-ICCTA licensing standard, which contained no presumption in favor of approving an application. Section 204 of ICCTA[36] provided that cases pending before the ICC at the time ICCTA was enacted be handled under the pre-ICCTA provisions of the Interstate Commerce Act. UTU-GCA/MT argues that this application is a continuation of the Tongue River II proceeding that was pending in 1995, and that the savings provision of ICCTA therefore applies. Those parties advancing this argument seek to relitigate an issue that was settled by the Board’s decision in 1997 that rejected TRRC’s request to reopen Tongue River II and ruled that a new application would be required for the Western Alignment. Because the Tongue River III application was not filed until 1998, this is not a proceeding that was pending when ICCTA was enacted. The fact that the application proposes a modification to a line that had been approved prior to ICCTA does not alter this result. Accordingly, this application is governed by the current statutory standard. We note, however, that even if there were no statutory presumption, we would approve this proposal, as it clearly meets the pre-ICCTA standard as well. We first look at the financial condition of the applicant and the financial feasibility of the project. Our purpose in doing so is not to protect the applicant or those who choose to invest in the proposed project. Rather it is to protect (1) existing shippers from financial decisions that could jeopardize the carrier’s ability to carry out its common carrier obligation to serve them,[37] and (2) the affected communities from needless disruptions and environmental impacts if the applicant were to start construction but not be able to complete the project and provide the proposed service.[38] Here, as discussed below, we conclude that TRRC is financially capable of successfully completing this project and providing the service that it proposes.
In its application in 1998, TRRC estimated the cost of constructing the Western Alignment to be $92,612,496 and the combined cost of constructing the Tongue River I and the Tongue River II lines, as modified by the Tongue River III alignment, to be $295,023,368.[39] In its supplemental evidence in 2003, TRRC revised its estimate of the construction cost of the Western Alignment to $108,963,467 (in 2002 dollars), and the combined cost to construct the three lines, using the Western Alignment, to $341,350,059 (also in 2002 dollars).[40] These estimates include costs associated with excavation, major structure installation, construction reclamation, track installation, signals and communication system, and railroad infrastructure. Mr. Fix argues that
the applicant’s construction cost estimates are too low, and he questions aspects
of the design and engineering plans for the Western Alignment. For example, he questions the accuracy of TRRC’s
estimate of the amount of surface area that would be disturbed by construction
of the line because the line will be constructed through bedrock which, he
alleges, would lead to a greater disturbance of surface area than that
predicted by TRRC. Mr. Fix raises
concerns about the size of vehicle underpasses and whether loaded trains could
traverse the line in both directions without the need for helper locomotives.[41] Also, Mr. Fix claims that Granite
Construction, a company involved in the Tongue River project, ran over budget
when constructing In its reply, TRRC adequately
responded to each of Mr. Fix’s concerns.
Specifically, TRRC explains that the more bedrock is encountered during
construction, the less surface area will be disturbed, because TRRC will be
able to use steeper slopes for the portions of the alignment that traverse
bedrock.[42] TRRC further explains that the size of the
underpasses that will be constructed will be adequate;[43]
that Granite Construction did not participate in the construction of After considering all of the evidence on this issue, we accept Applicant’s construction cost estimates as unrebutted. In its application, TRRC explained that, to finance construction of the three lines, it planned both to raise approximately $105 million in equity capital, and to arrange for a privately placed (construction loan and first mortgage) debt of approximately $218 million. The privately placed debt would be at competitive market interest rates at the time of issuance and would have various maturities. TRRC further explained that interest expenses accrued during the first 2 years of operation would be deferred and capitalized, and that the debt would be financed under a line of credit provided by a syndicate of commercial or institutional lenders.[47] TRRC has updated its financial plan, explaining that, to the extent that the capital construction cost estimates have increased, the approximate amount of capital and long-term debt would increase accordingly.[48] We have reviewed the applicant’s financing plan, and find it to be reasonable. Mr. Fix has raised concerns that the railroad could have difficulty financing the project, depending on market conditions at the time financing is sought. However, as with any business transaction, the financial community itself will ultimately determine whether it considers the project to be economically viable, and there is no reason, based on the record here, that we should foreclose that opportunity.[49] Mr. Fix also argues that the
railroad could have difficulty acquiring financing if it fails to acquire the property
for the right-of-way that it will need.
However, as TRRC explains, the company will negotiate with land owners
to obtain the necessary property. If
these negotiations fail, TRRC could institute condemnation proceedings under Based on TRRC’s
1998 estimates, the $323 million in capital available to TRRC exceeds the
estimated funds necessary to construct the lines from NPRC takes issue with TRRC’s tonnage forecasts and hence the revenue that TRRC could expect. TRRC proposes to transport both
NPRB coal and SPRB coal. For the Wyoming
(SPRB) coal, TRRC would serve as a bridge carrier for BNSF, with BNSF both originating
and terminating that traffic. The
Montana (NPRB) coal would originate on TRRC before being interchanged to BNSF
for transport to its final destination.
In its 1998 application, TRRC anticipated that in the first 10 years of
operations the vast majority of the coal that would be transported on the line
would be In its 1998 application, the
railroad estimated that it would haul a total of 26.4 million tons of coal in
its initial year of operations. In its
2003 supplemental testimony, TRRC revised its estimates to 32.1 million tons of
coal in its initial year of operations (2009) and 36.9 million tons of coal in
2019.[52] (These figures include 16.6 million tons of NPRC raises
concerns that the mines in the Second, even
if demand for In these circumstances,
NPRC has not supported its claim that the NPRC further claims that the Ashland-area coal is high in sodium and that this affects its commercial value. A study of the sodium content of Ashland-area coal had not yet been completed when this record was developed. However, as TRRC notes, the coal around Decker has a high level of sodium, and that has not prevented the mines around Decker from developing and selling coal. Moreover, newer coal-fired plants can burn coal that is high in sodium, and older plants can be modified to burn it.[60] NPRC also suggests that TRRC has
not adequately addressed how the construction of DM&E’s new line into the
PRB may affect this project. The
DM&E line has not yet begun to be constructed. However, as explained in the Final SEIS, little
of the coal TRRC expects to carry would compete with DM&E coal.[61] While TRRC expects to carry both As the Board concluded in the 1998
DM&E decision, some markets that use Based on its traffic projections, TRRC has submitted a pro forma statement for the first 10 years of operations that was updated in 2003.[65] It projects TRRC starting to earn sustained profits in the 5th year of operations and for TRRC’s profit margin to continue to grow. TRRC projects that it would pay off its loans in no more than 12 years. The information provided by the applicant appears reasonable and adequate to show that TRRC should be financially able to construct the line, operate it, and service its debts.[66] In any event, while we believe that TRRC would secure sufficient traffic to make the Western Alignment project financially viable, the market ultimately will determine whether or not the line is built. The venture capitalists, banking institutions, and overall financial sector will provide the necessary financing if they agree that TRRC is financially viable. Given the liberal nature of our licensing statute, they should have that opportunity.[67]
As
discussed above, TRRC has provided letters of public support from TRRC will
carry some SPRB coal for BNSF out of For these reasons, we find that there will be a demand for the service over the Western Alignment. NPRC suggests
that the DM&E line would satisfy the need for a shorter transportation
route for existing coal mines in the PRB and therefore lessen the need for this
project. However, the DM&E line, if built,
would be over 100 miles to the south-southeast of the TRRC line at its closest
point.[71] Moreover, TRRC will carry NPRB coal from A number of opponents contend that there is no need for the proposed line because existing coal mines around Decker are already served from BNSF. However, BNSF’s current service is less efficient than what could be provided in conjunction with TRRC.[72] Additionally, BNSF may not be able to continue to meet the demand for NPRB coal, because the mines on BNSF’s line around Decker are being depleted. The
opponents also note that the Montco mine in the Finally, NPRC notes that a proposed project to ship electricity from the Otter Creek coal mining area to the West Coast by electric transmission could affect the need for this project. However, this project would be small in scale and would not compete with TRRC's service.[73] The bulk of the coal hauled by TRRC will head to Midwestern markets, not to the West Coast. The record
shows that the proposed construction has little potential for harming existing rail
services. The DM&E and TRRC lines
generally would serve different customers and transport primarily different
types of coal. The two could compete for
some Construction of the Western Alignment will further the national rail transportation policy. Because the Western Alignment will create a shorter route and more efficient service for both BNSF and TRRC, it will contribute to a sound transportation system. See 49 U.S.C. 10101(4). The more efficient route will also lower costs for TRRC and for shippers, thereby encouraging sound economic conditions. See 49 U.S.C. 10101(5). A number of commenters object to the Western Alignment because of the potential loss of railroad jobs that would result from use of TRRC’s shorter route for coal to reach Midwestern markets. It is projected that 87 BNSF crew member positions would be lost due to TRRC.[75] Fewer employees would be needed on the Western Alignment than on the Four Mile Creek Alternative because the proposed route is shorter and would require fewer helper locomotives.[76] However, the potential job losses on BNSF would be largely offset by the new jobs that construction and operation of this line would create.[77] Moreover, the number of job opportunities should increase as TRRC handles an increasing amount of traffic. And because of the greater amount of earthwork that would be needed for the Western Alignment, building this route would create dozens more jobs during the 3-year construction period than the Four Mile Creek Alternative.[78] Finally, BNSF has entered into labor agreements with the Brotherhood of Locomotive Engineers and Trainmen and the United Transportation Union that provide for protection of its employees.[79]
NPRC and
other commenters are concerned that the construction and operation of this line
will harm existing We do not
credit these 15-year-old predictions.
The Colstrip mines do not produce low-sulfur “compliance” coal, and there
is ample evidence in the record to support the conclusion that the historic
demand for the low-sulfur type of NPRB coal that TRRC will carry will continue.[80] Furthermore, it is clear today that, without this
line, it would be difficult for
As discussed above, some ranchers have expressed
reluctance to sell land to create the right-of-way and some have expressed concern
about whether they will be adequately compensated for the loss of their
property. TRRC intends to negotiate with
the ranchers to reach an appropriate purchase price for the property needed for
the right-of-way. Should negotiations
reach an impasse and TRRC acquires the land under the Both the
proposed Western Alignment and the Four Mile Creek Alternative would cross
mostly undeveloped land; neither alternative would traverse Native American
reservation property. (At the rail
line’s closest point, it will be approximately 4 miles east of the Crow
reservation.) For both alignments, the
primary cultural and paleontological resource issues relate to concerns about disturbing
prehistoric, historic, and traditional cultural resources during construction
and operation. Native Action and the
Northern Cheyenne have expressed concerns that the Western Alignment would
bring the rail line closer to the SEA has developed
a Programmatic Agreement (PA) in consultation with a number of entities,
including the Advisory Council on Historic Preservation, the Montana State
Historic Preservation Officer, MTDNRC, BLM, the Corps, the Northern Cheyenne
Tribe, and the Crow Tribe.[81] The PA sets out the detailed requirements of
how the impacts to Native Americans associated with the construction and
operation of either the Western Alignment or the Four Mile Creek Alternative will
be addressed. The PA details a process
for the identification and treatment of cultural resources, including
archeological, architectural, historic, and cultural properties. The PA requires completion of detailed
on-the-ground surveys of the railroad right-of-way prior to construction and
development of a Treatment Plan in consultation with the parties to the PA; in
addition, it sets out procedures for reviewing and addressing objections and/or
disagreements. This new PA will replace
the previous PA developed in connection with the Accordingly, we are satisfied that the Western Alignment will not significantly harm existing rail services and that the construction and operation of the Western Alignment will be in the public interest. Under NEPA and related environmental laws, Federal agencies must examine the potential environmental effects of their proposed actions and must inform the public concerning those effects.[83] The purpose of NEPA is to focus the attention of the agency and the public on the likely environmental consequences of a proposed action, in order to minimize or avoid potential negative environmental impacts.[84] While NEPA requires that we take a “hard look” at the environmental consequences of our licensing decisions, it does not mandate a particular result. Once the adverse environmental effects have been adequately identified and evaluated, we may conclude that other benefits outweigh the environmental cost.[85] Here, we have thoroughly reviewed the SEIS, as well as the EISs prepared in Tongue River I and Tongue River II to the extent they remain relevant. We concur in, and adopt, all of SEA’s analyses and recommendations, including those not specifically addressed here. Below, we briefly discuss SEA’s analysis of several major issues examined in the environmental documents. Major
Issues Discussed in the SEIS Minnesotans for an Energy Efficient Economy (ME3) and NPRC suggested that coal usage as a result of this project would increase enough to require an in-depth analysis of that usage and the resulting air emissions in the Midwestern markets that TRRC would serve. They cited to the court’s directive in Mid States that the Board examine the potential indirect air emission impacts of increased coal usage that might result from lower transportation rates brought about by DM&E’s PRB rail construction project.[86] In addition, these commenters suggested that the Board consider the cumulative effects of the 40 million tons of coal that TRRC could carry in combination with the 100 million tons that could be carried on DM&E’s line. In response to Mid States, SEA prepared a detailed SEIS in the DM&E case addressing, among other things, how the DM&E project might affect the consumption of PRB coal through lower transportation rates, and how these changes might in turn affect air quality. SEA’s approach was to assess the sensitivity of coal-fired power plants to changes in the transportation rates for PRB coal, using the National Energy Modeling System (NEMS) of the Department of Energy’s Energy Information Administration—a tool that is widely used by the Legislative and Executive branches of the Federal government in forecasting energy use and the associated environmental impacts. Based on that rate sensitivity analysis, the Board concluded that little additional coal would be consumed, regionally or nationally, as a result of DM&E’s new line, and that the small changes in PRB coal usage from the DM&E project would translate to minimal changes in air emissions regionally or nationally.[87] In Mayo, the court found the agency’s analysis to be sufficient. As
explained in the Final SEIS, in light of the results of the rate sensitivity
analysis conducted in the DM&E case, conducting a similar detailed
analysis is not necessary here.[88] This proposal is less likely than DM&E’s to
result in lower transportation rates.[89] For example, part of the For the same reasons that we do not expect significant coal rate reductions to result solely from TRRC’s presence in the market, we do not expect significant cumulative air quality impacts, or further effects on coal rates and hence coal consumption, to result from building both the TRRC and DM&E lines that would not result from the new DM&E line alone. More specifically, we do not anticipate any combined rate reductions that would reach twice the amount of the rate reductions expected from DM&E alone. Because the study in the DM&E case showed that even if the rate reduction were twice the most likely scenario,[91] little additional coal would be consumed regionally or nationally due to DM&E, there is no need to conduct a separate study here. The information we already have is sufficient for us to determine with confidence that the cumulative air quality impacts of the TRRC and DM&E projects would be minimal, at least on a national and regional basis.[92] Cattle passes are commonly used on roadways and rail corridors to route cattle across roadways and rail lines. In Mitigation Measure 3 we will require TRRC to install cattle passes to allow the cattle to go underneath the rail line, at spots to be negotiated with the land owners. Some commenters have raised concerns that, if a cattle owner should choose to move cattle between pastures over the rail line (rather than underneath), the proposed line could cut their cattle off from grazing land or result in train kills of cattle during crossings. However, there would be a 90-minute or longer interval between trains.[93] Therefore, cattle owners should have ample time to move their cattle safely over the rail line. Concerns were also raised about the cumulative impacts of this project and coal bed methane (CBM) well development in the area, which was approved by BLM in 2003.[94] However, as explained in the SEIS, under either the Western Alignment or the Four Mile Creek Alternative, the development of the wells would not alter the land use in the vicinity of the rail line. Moreover, the changes are not expected to be long-term; for any CBM gas well project a reclamation plan must be submitted to BLM for approval that shows how the land will be returned to its original state after the gas has been extracted.[95] We recognize that both construction and operation of the railroad and CBM well development could create fugitive dust during construction.[96] However, Mitigation Measures 69-72 should serve to suppress dust generated from construction and operation of these lines. Similarly, with Mitigation Measures 43-51 and the conditions imposed by BLM for the CBM wells, the potential effects on hydrology and water quality should not be significant.[97]
The
Western Alignment Versus the Four Mile Creek Alternative Both the
Western Alignment and the Four Mile Creek Alternative are environmentally
acceptable routes: they both can be
operated safely, they both avoid the sensitive Moreover, grades steeper than 1.0%, like the Four Mile Creek Alternative, would require additional engines to haul loaded trains against the grade, which translates into greater consumption of fuel.[101] Operation of the Western Alignment would require only 65% of the fuel required by the Four Mile Creek Alternative. The Western Alignment would also have less of an impact on local residents. For example, as the Final SEIS explains, the route would require only four at grade public road crossings, as compared to the seven that would be required for the Four Mile Creek Alternative. The Western Alignment would cross the property of 13 land owners—two fewer than the Four Mile Creek Alternative.[102] Lastly, operation of the Western Alignment would not affect any noise-sensitive receptors such as homes, whereas operation of the Four Mile Creek Alternative would affect five receptors.[103] In addition, the Western Alignment would affect less land than the Four Mile Creek Alternative, because it is 12.1 miles shorter than the previously approved route. This shorter distance translates into 672 acres required for the right-of-way for the Western Alignment, compared to 765 acres using the Four Mile Creek Alternative.[104] And the Western Alignment would affect less wetlands (1.69 acres) than the Four Mile Creek Alternative (6.09 acres).[105] As explained
in the SEIS, the amount of earthwork (i.e., grading cut and fill) is a
potentially significant impact under either route.[106] However, the Western Alignment would require
more earthwork (17.3 million cubic yards moved) than the Four Mile Creek
Alternative (10.3 million cubic yards). As
a result, the Western Alignment has a greater potential for impacts in the
areas of soil erosion, sediment load to the In sum, we agree with SEA that the Western Alignment is environmentally preferable.[108] Additional Focused Environmental Analysis for the Tongue
River I and As noted
above, the SEIS contains additional analysis of the Tongue River I line and
the remainder of the Tongue River II line where: (1) environmental consequences or
requirements have changed in a manner warranting the updating and augmenting of
the prior analysis; (2) TRRC has made adjustments to the alignment
previously considered in the EISs for Tongue River I and Tongue River
II that might result in significant environmental impacts not addressed in
those previous EISs; and (3) additional environmental analysis is appropriate
to assist the cooperating agencies in fulfilling their regulatory
responsibilities and functions.[109] For example, SEA conducted further wetlands
analysis and prepared a Biological Assessment updating baseline habitat and
species data, identifying threatened and endangered species and their habitat,
and containing current information on the presence of bald eagles along the
entire right-of-way for these lines. A
new PA was developed, which requires additional cultural surveys and the
development of a Treatment Plan prior to beginning construction of any portion
of the Tongue River I, Tongue River II, or Tongue River III
lines. Additional analysis of the water
quality of Otter Creek and the upper and lower Tongue River was conducted,
because these bodies of water were recently designated as impaired water bodies
by the State of As discussed in the SEIS, the refinements proposed by TRRC to the Tongue River I line and to the remainder of the Tongue River II line would not result in significant impacts not previously considered in the EISs prepared in those proceedings.[111] Moreover, there was no need to modify the analysis of increased coal production in the Ashland/Birney/Otter Creek area beyond what was discussed in the Tongue River I and in Tongue River II proceedings because there are currently no proposals under review for leasing of the Otter Creek tracts or constructing the coal-fired generator and power line that have been discussed.[112] At the same time, certain of the mitigation measures in the Tongue River I and Tongue River II decisions should be modified or updated so that mitigation will generally apply uniformly to all segments of line. The Final SEIS includes new or modified mitigation measures to (1) minimize impacts associated with the 100-year flood plain; (2) further minimize impacts on aquatic resources, wetland habitat, and plant and animal species of special concern; (3) minimize impacts on the Miles City Fish Hatchery; (4) improve the mitigation relating to the revegetation of disturbed soils; (5) address the impacts of saline/sodic soils and soil slumping; (6) minimize the impacts of blasting on the Tongue River Reservoir Dam; (7) further insure train operation safety; (8) clarify the Board’s process for monitoring and enforcement of TRRC’s implementation of the environmental mitigation; and (9) minimize impacts on paleontological resources.[113] a. Some commenters
to the Draft SEIS suggested that the effect of the project on the Battle Butte (or
Wolf Mountains) Battlefield (a site associated with the Sioux Wars and the
subsequent surrender of the Sioux and Cheyenne)[114]
was not addressed sufficiently in the Draft SEIS, and that the project would
have a substantial adverse effect on the battlefield that could not be
mitigated without rerouting the rail line around the site. However, as the Final SEIS explains, while
the alignment approved in Tongue River II would pass through the center
of the site, the railroad’s proposed realignment in Tongue River III would
place the line approximately 1,100 feet farther to the south, and farther from
an identified Cheyenne grave site.[115] Moreover, as the Final SEIS notes, the new PA that
has been executed includes methods to address the potential adverse effects of
the rail line on the b. TRRC has
proposed changes to the alignment approved in Tongue River I where it
crosses the Miles City Fish Hatchery.[117] In Tongue River I, two alternatives
for crossing hatchery property were evaluated.
One alternative would have connected to the former As explained in the Draft SEIS, TRRC now proposes to move the staging yard and necessary facilities to a location south of Interstate 94, and to construct a wye track to connect with the existing BNSF line.[118] TRRC has consulted with the Montana Department of Fish, Wildlife and Parks (MTDFWP) regarding the proposed alignment across the hatchery. MTDFWP raised concerns about weed control, harm to water supply pipelines, and the potential for harm caused by vibration from train operations. MTDFWP is particularly concerned about possible impacts of rail construction and operations on research activities associated with the pallid sturgeon, which began at the Fish Hatchery after the Tongue River I line was authorized in 1985. As detailed in the Final SEIS, TRRC has conducted a number of studies and consulted with the MTDFWP to address these concerns. TRRC and MTDFWP have agreed on how to resolve the weed and pipeline concerns, and Mitigation Measures 84 and 85 will require TRRC to comply with these measures. As set out in the SEIS, the parties also have had a number of discussions on the potential vibration issues. MTDFWP has asked the applicant to conduct additional baseline studies to more fully understand the potential long-term effects that vibration may have on the fish. TRRC is concerned that long-term studies of the sort MTDFWP has sought could significantly delay its construction schedule. However, in April 2006, the railroad agreed to implement a work plan (included as Appendix G to the Final SEIS) for additional vibration monitoring at the hatchery.[119] We have imposed Mitigation Measure 92, requiring TRRC to prepare its proposed work plan. Beyond that, we believe that TRRC and MTDFWP should continue to work cooperatively on a mutually acceptable solution to the potential vibration issues involving the hatchery.[120] To encourage and facilitate these negotiations, and to address what would happen in the event of an impasse, we are imposing Mitigation Measure 86, which will require TRRC to make itself available to consult with MTDFWP for 6 months (or longer if the parties ask for more time to continue their negotiations). The condition further provides for reporting to the Board on the outcome of the parties’ negotiations and, if the parties cannot come to an agreement themselves, would allow either party to request that the Board develop further mitigation to address any remaining concerns related to the fish hatchery that the Board determines warrants mitigation. Finally, Mitigation Measure 87 requires TRRC to adhere to reasonable conditions imposed by MTDFWP in any easement granted by the State allowing TRRC to cross the fish hatchery.[121] We are satisfied that our mitigation adequately addresses concerns raised during the SEIS process about the fish hatchery. Several comments raised concerns related to potential water quality degradation within the project area, particularly with regard to the water quality restoration plans and associated total maximum daily load standards (TMDLs)[122] that are being established. As explained in the Final SEIS,[123] Mitigation Measures 36 and 38 through 47 will adequately address the concerns involving water quality that have been raised. d. Monitoring and Enforcement of Mitigation
Measures. Finally, several commenters raised concerns about how the mitigation measures we impose will be monitored and enforced. As explained in the Final SEIS,[124] SEA has recommended three mitigation measures addressing monitoring and enforcement of our mitigation, each of which we will impose. First, we provide for a Multi-agency/Railroad Task Force to monitor and approve the implementation of all of our biological (i.e., terrestrial and aquatic) mitigation measures for Tongue River I, Tongue River II, and Tongue River III (except for issues concerning the Miles City Fish Hatchery), which will remain active for the construction period and at least 2 years after rail operations begin (Mitigation Measure 14). Second, our mitigation requires TRRC to retain an independent third-party contractor to assist SEA in the monitoring and enforcement of all the mitigation measures and the management of the Task Force (Mitigation Measure 16). Finally, we will require TRRC to document its implementation of our environmental conditions by filing a status report every 4 months (beginning with the effective date of this decision and continuing through the first 2 years of railroad operations) so that we are kept up to date on the implementation of, and effect of, all of the mitigation we have imposed (Mitigation Measure 17). As explained in the Final SEIS,[125] the monitoring and reporting will allow mitigation to be refined, prior to construction if warranted, when final engineering is completed and the exact alignment is determined. It will also allow for modifications, if appropriate, to address the conditions that exist during construction and the first 2 years of rail operations. See also Mitigation Measure 15 (providing that the Board may review whether the continued application of its final mitigation is warranted, if there is a material change in the facts or circumstances upon which the Board relied in imposing the environmental mitigation). Balancing of Environmental and Transportation Concerns In evaluating the public interest, safety and environmental impacts are weighed against transportation concerns.[126] Here, the potential environmental impacts do not warrant disapproving the Tongue River III proposal in view of the significant transportation and other public benefits associated with this project and the fact that the Western Alignment, as conditioned, will generally have less of an impact on the environment than the previously approved Four Mile Creek Alternative. We have also thoroughly examined SEA’s analysis of the updated information related to the Tongue River I and Tongue River II lines and adopt it. Nothing in the SEIS causes us to question the grant of authority in those decisions. Moreover, as previously noted in the SEIS, SEA has recommended that we update and improve the final environmental conditions previously imposed in Tongue River I and Tongue River II. We agree that SEA’s final recommended conditions for the proceedings are reasonable and appropriate. The Final SEIS includes 92 recommended mitigation conditions to reduce the potential adverse impacts of constructing and operating the Western Alignment and to modify and update the conditions imposed in Tongue River I and Tongue River II.[127] The areas covered by the conditions include land use (agricultural, ranching, recreational); social, economic and transportation concerns; air and noise impacts; safety and fire prevention; water quality and hydrology; aquatic and terrestrial ecology; Native American concerns; and cultural and historic resources. MTDNRC and other
MTDNRC also asks that it be granted the right to negotiate specific cattle pass locations and private and/or public crossings on state trust lands under Mitigation Measure No 3. This request is reasonable, and we will modify the condition accordingly.[128] Finally, some commenters asked for a condition that would require TRRC to construct the Tongue River I, Tongue River II, and Tongue River III lines within 3 years of the service date of this decision. We will not impose such a condition at this point. We recognize that the project has caused frustration, anxiety, and economic uncertainty for ranchers and BNSF employees in the area, and that the Tongue River I and Tongue River II lines have long been authorized, but have not yet been built. However, a 3-year window in which to complete construction might not be long enough in view of the various consultations, studies, and approvals from other agencies that will be required to implement the authority we are issuing here. Moreover, our mitigation conditions specifically include reporting and monitoring, including a requirement that TRRC file regular status reports pursuant to Mitigation Measure 17.[129] If it should appear that TRRC is not going forward with construction in a timely manner, we can revisit whether a time limit might be warranted at that time. In sum, we adopt SEA’s recommended environmental mitigation conditions, with slight modifications, for Tongue River I, Tongue River II, and Tongue River III (see Appendix B), and grant approval, as conditioned, for TRRC to construct and operate the Western Alignment. For the reasons discussed above, we find that, with the environmental mitigation set out in Appendix B to this decision, the proposed construction and operation of the Western Alignment will not be inconsistent with the public convenience and necessity. We further find that, except as otherwise noted in the conditions themselves, the conditions in Appendix B should also apply to Tongue River I and Tongue River II, and should be substituted for the environmental conditions imposed in those proceedings. It is
ordered: 1. The motions for an oral hearing are denied.
2. The application in STB Finance Docket No. 30186 (Sub-No. 3) to construct and operate the Western Alignment is granted, subject to the environmental mitigation measures set out in Appendix B. 3. Finance Docket No. 30186 and Finance Docket No. 30186 (Sub-No. 2) are reopened for the limited purpose of modifying the environmental conditions imposed in those proceedings to substitute the environmental conditions set forth in Appendix B. 4. This decision is effective on November 8, 2007. By the Board, Chairman Nottingham, Vice Chairman Buttrey, and Commissioner Mulvey. Secretary Land
Use Mitigation Measures Mitigation Measure 1 (Direct and Indirect Land Loss) TRRC shall negotiate compensation for direct and indirect loss of agricultural land on an individual basis with each landowner whose property will be affected as a result of the construction and operation of the lines between Miles City and Decker. TRRC shall assist landowners in identifying and developing alternative agricultural uses for severed land, where appropriate. TRRC shall apply a combination of alternative land use assistance and compensation as necessary and agreed upon during right-of-way negotiations. [Tongue River II, Land Use Condition (1), modified by minor edits] Mitigation Measure 2 ( Mitigation Measure 3 (Access Restrictions). TRRC shall install cattle passes (oval, corrugated metal structures, approximately 11 feet high and 12 feet wide at the base) along the railroad right-of-way to ensure passage of cattle under the rail line. TRRC shall work with landowners to identify appropriate locations for cattle passes and private grade crossings for equipment. TRRC shall also negotiate the placement of specific cattle passes and private and/or public crossings on state trust lands with the Montana Department of Natural Resources and Conservation. [Tongue River II, Land Use Condition (4), modified at the request of MTDNR] Mitigation Measure 4 (Displacement of Capital Improvements). Where capital improvements are displaced as a result of construction or operation of these rail lines, TRRC shall relocate or replace these improvements or provide appropriate compensation based on the fair market value of the capital improvements being displaced. [Tongue River II, Land Use Condition (2), modified to provide additional clarity regarding fair market value compensation] Mitigation Measure 5 (Impacts During Construction). During final engineering, TRRC shall consult with individual landowners to minimize conflict between construction activities and ranching operations. [Tongue River II, Land Use Condition (5), modified by minor edits] Mitigation Measure 6 (Construction Areas). TRRC shall confine all construction activities to the railroad right-of-way and to the construction camps along the rail lines, at locations to be negotiated between individual landowners and TRRC [Tongue River II, Land Use Condition (6), modified by minor edits] Mitigation Measure 7 (Construction Camps). TRRC shall require its construction contractors to assure that all construction camps are orderly. Upon completion of construction, TRRC shall return the camps to their previously existing use. [Tongue River II, Land Use Condition (7)] Mitigation Measure 8 (Construction Liaison). TRRC shall appoint a representative, with direct access to management, to work with primary construction contractors, subcontractors, and affected landowners to address any problems that develop during construction. [Tongue River II, Land Use Condition (8)] Mitigation Measure 9 (Wildfire Suppression and Control Plan). Prior to construction of these rail lines, TRRC shall develop a Wildfire Suppression and Control Plan for fires occurring on the right-of-way as a result of rail construction/operations or undetermined causes. TRRC shall observe the following measures in developing the plan: (1) The plan shall be developed with the Montana Department of Natural Resources and Conservation’s Eastern Land Office, as well as other appropriate governmental agencies and volunteer fire departments along the route. (2) The plan shall be developed by TRRC after final engineering and overall operation plans are complete. This will afford planners the benefit of specific information regarding TRRC’s operation, equipment, and personnel that might be of use in case a fire occurs. (3) State-of-the-art techniques for fire prevention and suppression shall be evaluated and included in the plan, as appropriate. [Tongue River II, Safety Condition (4), modified to clarify that the above measures are required for fire suppression] Mitigation Measure 10 (Fire Prevention). To minimize the potential for railroad-caused fires, TRRC shall observe all general rail safety regulations promulgated by the Federal Railroad Administration regarding railroad operations. [Tongue River II, Safety Condition (4), modified to clarify that this measure is to help prevent fire] Mitigation Measure 11 (Fire Suppression). Prior to construction of the rail lines, TRRC shall negotiate with local ranchers along the right-of-way the placement of fire suppression equipment so that it may be used to promptly extinguish fires during construction and operation of the lines. [Tongue River II, Safety Condition (5), modified by minor edits] Mitigation Measure 12 ( Mitigation Measure 13 ( Biological
Resource Mitigation Mitigation Measure 14 (Task Force). TRRC shall participate as a member of a Multi-agency/Railroad Task Force. The purpose of the Task Force shall be to approve the implementation and monitoring of biological (i.e., terrestrial and aquatic) mitigation measures for Tongue River I, Tongue River II, and Tongue River III, with the exception of the Miles City Fish Hatchery. Unless otherwise indicated in the Board’s mitigation conditions, TRRC is responsible for compliance with all biological mitigation conditions set forth below. As specified in the mitigation conditions themselves, TRRC shall prepare various surveys, plans and documents for review and approval by the Task Force. It will be the responsibility of the Board representative on the Task Force to convene the Task Force when an appropriate issue involving terrestrial and aquatic matters arises. The Task Force, in conducting its review of any survey, plan or document related to terrestrial and aquatic issues, shall attempt to reach agreement and approval through consensus within 15 working days of receipt by all Task Force members of each survey, plan or document. If a consensus cannot be reached by the Task Force members within 15 working days, a vote shall be taken on the 15th working day and approval shall be determined by a majority of the Task Force members present (at least one half of the members present plus one vote). If the Task Force is unable to reach a decision, either through consensus or by a majority vote, the Board representative on the Task Force shall bring a recommended resolution back to the Board within 10 working days of the vote, at which time the Board will make a final decision within 10 working days. Task Force Members shall participate in the Task Force at
their own discretion and expense and to the extent that their resources
permit. Further, Task Force members may
use additional resources available to them to implement mitigation. Other parties may be invited to consult on
specific issues, as appropriate; however the actual membership of the Task
Force will be limited to the agencies specified in this condition. Those
agencies who have agreed to participate on the Task Force include the Board,
Montana Department of Fish, Wildlife and Parks, Montana Department of Natural
Resources and Conservation, United States Fish and Wildlife Service, Bureau of
Land Management, and United States Army Corps of Engineers. TRRC has also agreed to participate. The Board will act as the lead agency to
coordinate the Task Force. Each
participating agency, as well as TRRC, shall designate a representative(s) to
work with the Task Force. The United
States Environmental Protection Agency (EPA) shall be included on the mailing
list for written reports and findings circulated by the Task Force to assure
that EPA has the opportunity to raise any concerns it might have. The Task Force shall inform EPA of critical
issues related to its jurisdiction if the Task Force is unable to address such
issues itself. The
Task Force will remain active until TRRC certifies to Mitigation
Measure 15 (Material Changes). If
there is a material change in the facts or circumstances upon which the Board
relied in imposing specific environmental mitigation conditions, and upon
petition by any party who demonstrates such material change, the Board may
review the continuing applicability of its final mitigation, if warranted. [Tongue River Mitigation
Measure 16 (Third-party Contractor).
TRRC shall retain a third-party contractor to assist Mitigation
Measure 17 (Reporting). TRRC shall
submit to Mitigation
Measure 18 (Plant Species of Concern).
TRRC shall conduct a field search of the alignment during final-phase
engineering of these lines to identify plant species of concern (Federal and
state) and to implement appropriate mitigation measures during construction
activities if such species are found.
This field search shall be conducted during the appropriate time of year
to identify any potential rare plant species.
(The survey schedule shall be approved by the Multi-agency/Railroad Task
Force in accordance with the process set forth in Mitigation Measure 14.) TRRC shall prepare and implement a formal
mitigation plan approved by the Task Force for minimizing impacts on species of
concern. [Tongue River Mitigation
Measure 19 (Reclamation). During
construction of these lines, TRRC shall implement reclamation and revegetation
of the right-of-way ( (1) Preconstruction Planning – TRRC shall include the following elements in its reclamation planning: (a) Designation of sensitive areas. (b) Proposed time schedule of construction activities. (c) Right-of-way clearing and site preparation plans. (d) Preconstruction evaluation of soils to be disturbed. The soils’ A horizon (the A horizon is the topmost soil layer that is commonly made up of unconsolidated organic matter, e.g., leaf litter, and is not saturated with water) shall be identified, removed, stored, and replaced prior to revegetation. (e) Erosion and sediment control plans. (f) Waste disposal plan. (g) Restoration, reclamation, and revegetation plan. [Tongue River I, Condition 10.3(1)(a); Tongue River II, Vegetation Condition A.9.3.2.(1)(a), modified to include soils evaluation] (2) Restoration/Reclamation Plan – TRRC shall follow the following procedures in its restoration and reclamation plan: (a) Commencement of reclamation as soon as practicable after construction ends, with the goal of rapidly reestablishing ground cover on disturbed soils that could support vegetation, with all cut and fill slopes mulched and seeded as they are completed. Twine used to hold bales of mulch together shall be of biodegradable material. (b) Avoidance of reclamation when soil moisture is high or ground is frozen. (c) Use of straw mats in the revegetation process to reduce erosion and to add carbon back into the soil system to promote the accumulation of soil organic matter. (d) Ripping and disking of soils prior to revegetation to prevent compaction of soils and to increase the ability of plant roots and water to penetrate the soil. (e) Analysis of site soil requirements and seasonal precipitation patterns to identify planting dates for optimal revegetation success. (f) Use of rapidly establishing plant species for thorough and rapid ground surface protection. (g) Retention of a reclamation specialist to determine specific procedures for reclamation on steep slopes or locations near waterways. (h) Revegetation shall not be implemented uniformly along these rail lines, but rather revegetation criteria shall be based on the circumstances present in specific construction areas to assure that habitat and functionality are maintained within each ecosystem. [Tongue River II, Vegetation Condition A.9.3.2(1)(b), modified to clarify where reclamation efforts would be successful and include additional measures] (3) Revegetation Success Assurances – To ensure revegetation success, TRRC shall implement the following measures: (a) Development of an inventory and documentation of pre-existing conditions. (b) The type and quantity of seed, fertilizer, and other soil amendments to be used shall be determined based on soil chemical and physical properties. TRRC shall use native species for revegetation, where possible, unless alternatives are approved, in advance of application, by the Multi-agency/Railroad Task Force in accordance with the process set forth in Mitigation Measure 14. On Bureau of Land Management tracts, all seeds shall be from native species. Species to be used for revegetation may include, but are not limited to: • Western wheatgrass (Pascopyrun smithii (Agropyron s.)) • Green needlegrass (Nasella viridula (Stipa v.)) • Little bluestem (Schizachyrium scoparium) • Slender Wheatgrass (Elymus trachycaulus) • Blue flax (Linum perenne-forb) • Purple prairie clover (Dalea lasiathera-forb) • Bluebunch wheatgrass (Pseudoroegneria spicata) • Thickspike wheatgrass may be substituted only when western wheatgrass is unavailable (c) Segregation of topsoil from subsoil and
topsoil stockpiled for later application on the reclaimed (d) Use of only seed of registered quality and germination success that has been certified as weed-free. (e) Use of appropriate seeding techniques, such as drill seeding on level terrain and broadcast seeding or hydroseeding on slopes, to ensure distribution of seed mixture on individual microenvironments. (f) Use of mulch material that has been certified as weed free, such as straw and woodchips, as a temporary erosion measure and to minimize soil temperature fluctuations and soil moisture loss. Mulch shall be applied more heavily on slopes than on level terrain, and nitrogen levels shall be adjusted to reflect the increased demand during mulch decomposition. (g) Cover and compaction of seeded area following seeding. (h) Use of a minimum of 20 pounds per acre of pure live seed throughout, where applicable. (i) For slopes and construction areas near waterways, employment of a variety of Best Management Practices, including the use of sediment traps/basins, berms, contour furrows, silt fencing, straw bale barriers, rock checkdams, slope drains, toe-slope ditches, diversion channels, sodding, and erosion control blankets and/or mulching. (j) Monitoring of reclamation. Regrading shall be undertaken for revegetating areas not successfully reclaimed. (k) Development of success criteria. (l) Development of a timeline for completion of the revegetation plan as well as follow-up monitoring and enforcement of the revegetation plan and success criteria. [Tongue River I, Condition 10.3(1)(c); Tongue River II, Vegetation Condition A.9.3.2(1)(c), modified to include examples of BMPs and Task Force approval] (4) Provisions for Areas of Special Concern (a) On all slopes less than 3:1 (a slope of 3:1
signifies 1 vertical unit for every 3 horizontal units), Best Management
Practices (BMPs) shall be utilized to effectively and efficiently revegetate
the surfaces. Specific BMPs have been
identified by the National Resource Conservation Service for 1. Construction of furrows parallel to the slope contour to minimize erosion and stabilize seed beds by effectively reducing the length of the slope, which in turn will reduce the erosive properties of water by decreasing the water’s kinetic energy. 2. Minimization of foot traffic and grazing of domesticated animals so that the emerging vegetation at the site will establish more quickly. 3. Weed control either by clipping or applying labeled herbicides so that decreased competition from invasive species will enable the intended species to maximize the use of limited soil, water, and nutrients. 4. Preparation of the site seed bed utilizing standard agricultural techniques (e.g., disking, ripping) to facilitate plant emergence. If the site has limited topsoil, additional salvaged soil shall be placed on the surface to facilitate the preparation of the seed bed and provide a minimum of 4 inches of soil for revegetation activities. 5. Practice of fertilization rates, species
selection, and seeding rates on a site-specific basis by a range management
specialist. All seeds utilized in the
revegetation program shall comply with 6. Use of varying seeding methods at the cut/fill sites, including broadcast seeding, hydroseeding, or traditional agricultural drilling methods. If the site is planted by broadcast or hydroseeding, the seeding rates shall be doubled to ensure adequate plant emergence. 7. Mulching on all slopes less than 3:1 to minimize erosion using mulches such as straw woven fabric or artificial mulches based on site-specific conditions. 8. Additional temporary measures to reduce run-on onto the revegetated site. On sites where run-on could be a significant contributor to erosion, temporary diversion devices may be warranted to route water around the revegetated area. These diversion devices shall be removed once the site has been successfully revegetated. Additionally, the diversion devices shall be constructed to minimize concentration of water that could cause excessive erosion on non-disturbed sites. 9. If
the cut/fill slope material is primarily clinker or bedrock, the slope shall
not be revegetated. [Tongue River
II, Vegetation Condition A.9.3.2(1)(d)3, modified to include additional
specifics regarding slopes] [Tongue River II, Vegetation Condition
A.9.3.2(1)(d)1; deleted here, inserted as modified as HYD-5]; Tongue River II,
Vegetation Condition A.9.3.2(1)(d)2; deleted here, inserted as modified as
SAF-10] Mitigation
Measure 20 (Task Force Oversight of Revegetation Plan). TRRC’s revegetation plans shall be subject to
review and approval by the Multi-agency/Railroad Task Force in accordance with
the process set forth in Mitigation Measure 14.
If it becomes clear that the success criteria of the revegetation plans
are not feasible, the Task Force shall approve appropriate alternate
mitigation. Yearly monitoring schedules
and funds shall be arranged prior to construction of each rail segment, and
work plans shall be approved by the Task Force in accordance with the process
set forth in Mitigation Measure 14 before final engineering of these lines is
complete. [Tongue River III,
new] Mitigation
Measure 21 (Noxious Weed Control).
TRRC shall construct these rail lines in compliance with county weed
control plans for Rosebud and Big Horn counties, (1) The Noxious Weed Control Program shall include a combination of mechanical and herbicide spray methods to control noxious weeds. TRRC shall focus on non-chemical treatments first and shall use mechanical removal of weeds near watercourses wherever feasible, depending upon time of year. Spray sequences shall be utilized to ensure that weed plants do not reach maturity. (2) For riparian corridors, if the Noxious Weed Control Program proves unsuccessful in eradicating certain weed species, specific methods shall be identified by the Task Force to target individual noxious weed plants. (3) TRRC shall keep and reference records of herbicide application dates to ensure that the Noxious Weed Control Program goals are achieved. TRRC shall submit a report of weed control activities to the Multi-agency/Railroad Task Force annually during construction. In all cases, only trained, licensed personnel shall be involved in noxious weed control applications and shall apply herbicides according to the label specifications. The appropriate protective equipment shall be supplied to the personnel responsible for application. [Tongue River II, Vegetation Condition A.9.3.2(2), modified to provide additional clarity regarding the noxious weed control requirements] Mitigation Measure 22 (Wetland Permit). TRRC shall prepare a Detailed Habitat Mitigation Plan (Plan)—a document prepared to determine the appropriate habitat mitigation. TRRC shall adhere to all mitigation measures suggested in the Plan, as well as any measures imposed by the U.S. Army Corps of Engineers (Corps) in any Section 404 permit(s) issued by the Corps for construction of these lines. The Plan shall be prepared during the Section 404 permitting process and shall assure that adequate replacement of lost wetland functions and values occurs. The Plan, which shall be approved by the appropriate agencies before project implementation, shall contain a statement of goals, a monitoring plan, long-term management/protection objectives and a commitment to conduct additional work, if required, to meet the goals of the Plan. [Tongue River III, new] Mitigation Measure 23 (Stream Survey). Prior to construction of each rail segment and once site access is granted, TRRC shall, in consultation with the Montana Department of Natural Resources Conservation, conduct surveys of ephemeral streams that would be crossed by the railroad to determine the potential impacts of erosion and sedimentation on state species of concern, and consult with the Montana Department of Natural Resources Conservation on appropriate mitigation. [Tongue River III, new] Mitigation Measure 24 (Biological Opinion). TRRC shall adhere to the terms and conditions of incidental take statements set forth by the U.S. Fish and Wildlife Service in a Biological Opinion, issued on July 12, 2006. [Tongue River III, new] Mitigation Measure 25 (Aerial Survey). TRRC shall conduct an updated biological aerial survey during the winter before construction of each rail line segment begins. This aerial survey shall attempt to identify specific locations for ground surveys and any new winter ranges of species of concern. It shall also attempt to locate potentially active raptor nests especially in deciduous tree areas, while leaves are down. In addition, the aerial survey shall attempt to locate new prairie dog colonies along the route. Using the results of the surveys, TRRC will develop appropriate mitigation measures to minimize harm to species of concern, as needed, for approval by the Multi-agency/Railroad Task Force in accordance with the process set forth in Mitigation Measure 14. [Tongue River II, Wildlife Condition A.9.3.1(1), modified to clarify that aerial surveys shall be required for species of concern and to involve Task Force in developing any needed new conditions] Mitigation Measure 26 (Data Reconnaissance). Prior to the beginning of construction of each segment of
these lines, and once full access to the site of the railroad right-of-way is
obtained, TRRC shall conduct aerial and ground-level surveys, as
appropriate. Black-tailed prairie dog
surveys shall be conducted to determine if construction of the lines will
traverse any additional prairie dog colonies.
The surveys shall also determine the existence of black-footed
ferrets. If black-footed ferrets are
discovered, the Montana Department of Fish, Wildlife, and Parks shall be
notified. Based on the surveys, TRRC
shall develop appropriate means to mitigate the effects of construction and
operation of these lines on the black-tailed prairie dog and the black-footed
ferrets for approval by the Multi-agency/Railroad Task Force, in accordance
with the process set forth in Mitigation Measure 14. Regardless of the timing of construction,
once full access to the site of the railroad
right-of-way is obtained, TRRC shall survey the three black-tailed
prairie dog colonies that will be traversed by the railroad but are located on
private properties and were not accessible due to landowner issues at the time
the Biological Assessment was prepared, for black-footed ferret occupancy. If a black-footed ferret or its sign is found
during this survey, Section 7 consultation shall be re-initiated with the
United States Fish and Wildlife Service.
The surveys shall also locate habitat areas and nesting sites for the following species on these rail lines. The surveys shall be conducted during the following time periods: Big game (winter range) December 1 to February 28 Sage/Sharp-tailed Grouse March 15 to June 15 Raptors/Migratory Birds May 15 to June 15 Bats July 1 to July 31 Breeding Birds May 15 to June 15 Reptiles/Amphibians July 1 to August 31 TRRC
shall identify big game winter range and active nests of sage grouse, sharp-tailed
grouse leks (mating grounds) and raptors, particularly golden eagles and
prairie falcons, prior to the construction of any rail segments on a map as
part of the aerial and ground surveys.
In each subsequent year of construction, additional surveys shall be
conducted annually for the section (distance) of line that is to be built in
that year. Due to the potential for nest
initiation in the years after the initial survey, surveys shall be conducted
according to standard survey procedures during summer to determine the presence
of nests or of reptile and amphibian species.
Pedestrian surveys shall be done to locate habitat areas as well as
indicate recent activity. Using the
results of the surveys, TRRC shall develop appropriate mitigation measures, as
needed, for approval by the Task Force in accordance with the process set forth
in Mitigation Measure 14. [Tongue
River II, Wildlife Condition A.9.3.1(2), modified to better explain reason
for distance-specific annual surveys and involvement of Task Force if new
conditions are needed] (1) The purpose of the reconnaissance shall be to locate (a) big game winter range based on evidence, such as animal remains, hair, pellet groups, etc.; (b) sage grouse and sharp-tailed grouse leks; and (c) raptor nests, particularly golden eagles and prairie falcons. Any evidence of state or Federal threatened, endangered, or sensitive species shall also be documented during the reconnaissance. [Tongue River II, Wildlife Condition A.9.3.1(2)(a), modified to include Federally threatened, endangered or sensitive species] (2) Any specific-use sites that are identified during the reconnaissance shall be mapped, described in field notes, photographed and evaluated for significance. Nesting species of concern shall not be disturbed during reconnaissance. Nests shall be described as active or inactive. Results of the ground reconnaissance shall be presented and used by TRRC for developing mitigation measures to minimize impacts to sensitive wildlife and wildlife-use areas for approval by the Task Force in accordance with the process set forth in Mitigation Measure 14. This could include, but would not be limited to, restricting construction activities near nests during the nesting period; employing nest site monitors to gauge the level of disturbance and halt construction if disturbance is great; and requiring off-site habitat enhancement or replacement for unavoidable losses of sensitive wildlife resources. [Tongue River II, Wildlife Condition A.9.3.1(2)(b), modified to provide additional clarity and involvement of the Task Force and include other possible mitigation measures] (3) Surveys for sage and sharp-tailed grouse leks shall be conducted following the Montana Sage Grouse Conservation Plan of the Montana Sage Grouse Work Group. If a possible lek site is identified, observations shall be made between March 15 and June 15 to verify activity at each site. Surveys shall be conducted at dawn to listen for male activity at each lek and shall be completed at least 5 days apart. The
extent of each lek shall be mapped.
Vegetative cover suitable for nesting and brooding habitat adjacent to
each active lek shall also be mapped within a one-mile radius of the lek. Active leks shall not be destroyed by
construction of the railroad lines. If
impacts to active leks as a result of construction activities are unavoidable,
TRRC shall seek approval from the Task Force in accordance with the process set
forth in Mitigation Measure 14, as to whether avoidance of the lek site during
the mating season (March and April) is adequate mitigation. If the Task Force determines that the
permanent loss of the lek would be a significant and unavoidable impact, TRRC shall
develop appropriate replacement compensation for potential loss of grouse
habitat for approval by the Task Force in accordance with the process set forth
in Mitigation Measure 14. If the success
of lek site mitigation, as determined by the Task Force in accordance with the
process set forth in Mitigation Measure 14, has not been resolved during the
construction period, TRRC shall continue monitoring into the operational period
and shall advise (4) To reduce impacts on prairie dog colonies, prior to construction, TRRC shall develop appropriate means to mitigate the effects of construction and operation of these lines on the black-tailed prairie dog for approval by the Task Force in accordance with the process set forth in Mitigation Measure 14. [Tongue River II, Wildlife Condition A.9.3.1(2)(d, e and f), modified to clarify] Mitigation
Measure 27 (Night Survey). TRRC
shall conduct nighttime surveys in conjunction with the ground reconnaissance
required by Mitigation Measure 26 between July 1 and July 31, prior to
construction of each segment of these rail lines, for the purpose of
identifying the location of any bat species of concern. [Tongue River Mitigation
Measure 28 (Construction Surveys).
TRRC shall utilize monitors during construction to identify and clearly
mark areas containing sensitive biological resources for avoidance and to
educate construction contractors and the employees that will be involved in
rail construction activities about sensitive resources and the areas to be
avoided during the rail construction activities. [Tongue River Mitigation Measure 29 (Destruction of Habitat). Active habitats for state species of concern such as nests, brooding locations, and migratory corridors, etc., shall not be destroyed during construction of these lines. If impacts to these areas (short of destroying them) are unavoidable, TRRC shall seek approval from the Multi-agency/Railroad Task Force in accordance with the process set forth in Mitigation Measure 14 as to whether avoidance during a species’ active season would be adequate mitigation. If the Task Force determines that the permanent loss of habitat is a significant and unavoidable impact, TRRC shall develop appropriate replacement compensation for this potential loss of habitat in accordance with the process set forth in Mitigation Measure 91. In addition, if the Task Force determines that there has been significant habitat alteration after construction, TRRC shall develop appropriate habitat compensation for alteration of habitat in accordance with the process set forth in Mitigation Measure 91. [Tongue River III, new] Mitigation Measure 30 (Construction Activity Coordination). Rail construction activities shall be coordinated and timed to protect wildlife to the maximum extent possible. As part of these efforts, all reasonable attempts shall be made to minimize construction at big game wintering sites from December through March. [Tongue River II, Wildlife Condition A.9.3.1.1(1) clarified] Mitigation Measure 31 (Compensation Program). TRRC shall include the following mitigation measures as part of final right-of-way negotiations with private landowners along the right-of-way for these lines: (1) If the landowner agrees and where practicable, TRRC shall construct ponds adjacent to the railroad grade, or use the railroad grade as a dam. These ponds could include “dugout” type ponds and “bypass” ponds designed to be filled during high flows where appropriate. [Tongue River II, Terrestrial Condition A.9.3(2)]. For the construction of ponds, the railroad embankment (berm) shall form one (high) side of a depression. In its development of options for wildlife passage across the railroad right-of-way, TRRC shall consider ponds as a possible obstruction passage. Ponds shall also include erosion control features where appropriate. [Tongue River III, new] (2) If adjacent landowners agree, TRRC shall provide public access, in appropriate locations, if any, along the rail lines’ right-of-way. [Tongue River II, Terrestrial Condition A.9.3(3), modified to clarify that access would only be provided if the adjacent landowners agreed] (3) TRRC shall grant conservation easements along
these rail lines where appropriate. [Tongue
River I, Condition 10.1(4); Tongue River II, Terrestrial Condition
A.9.3(4), modified by minor edits] Mitigation Measure 32 (Pronghorn Antelope). TRRC shall prepare surveys that identify locations of pronghorn concentration, distributions, and movement for approval by the Multi-agency/Railroad Task Force in accordance with the process set forth in Mitigation Measure 14. This survey program shall be conducted prior to the beginning of construction of each segment of the rail lines. TRRC shall present the results of the study to the Task Force for its review and shall consider conducting a radio telemetry study (funded by TRRC) if preliminary surveys indicate heavy pronghorn use within the project area. Once potential impacts have been fully determined following the above mentioned studies, TRRC shall work with the Task Force to develop appropriate measures, as needed, to minimize impacts from the railroad. The following measures shall be considered and implemented, as appropriate: (1) establishment and enforcement of fencing standards along the railroad right-of-way that will allow movement of pronghorn while excluding livestock, as needed; (2) identification of optimal passage-site locations for pronghorn movement across the railroad; (3) use of grillwork as needed to exclude livestock while allowing movement of pronghorn across railroad at optimal locations; and (4) follow-up monitoring on an annual basis to evaluate effectiveness of passage. Monitoring shall continue through the reporting period previously identified in Mitigation Measure 17. In the unlikely event that this follow-up monitoring shows that the above mentioned mitigation measures are inadequate and the Task Force concludes that impacts to the wildlife’s ability to migrate are resulting in a decline in species population, TRRC shall develop additional mitigation options for approval by the Task Force in accordance with the process set forth in Mitigation Measure 14. [Tongue River II, Wildlife Conditions (1) and (2), modified to provide additional clarity regarding survey requirements and specify potential mitigation measures that are appropriate for species] Mitigation Measure 33 (Speed Limits). Prior to construction of each rail segment, TRRC shall post and strictly enforce speed limits on all construction access roads to minimize roadkills of wildlife due to increased traffic from construction workers temporarily living in the area. TRRC shall also advise all rail construction personnel that the purpose of these speed limits is to protect wildlife. [Tongue River III, new] Mitigation
Measure 34 (Aquatic Resource Sampling).
Prior to beginning construction activities in locations where the
railroad would cross the (1) Stream Habitat Survey. The stream habitat survey shall utilize methods described in Methods for Evaluating Stream, Riparian, and Biotic Conditions by William S. Platts, Walter F. Megahan, and G. Wayne Minshall. Stream transects shall be established and impact zones shall be identified in appropriate locations to evaluate existing conditions and to monitor changes during construction. Along each transect, the following variables shall be measured: (a) Stream width. (b) Stream shore depth. (c) Stream average depth. (d) Pool quality and forming feature (in feet). (e) Riffle (a ripple in a stream or a current of water) (in feet). (f) Run (in feet). (g) Substrate (mineral or organic material that forms the bed of a stream). (h) Stream bank soil alteration rating. (i) Stream vegetative stability rating. (j) Stream bank undercut and angle. (k) Vegetation overhang. (l) Embeddedness. [Tongue River II, Aquatic Condition A.9.2(1)(a), modified to include identification of impact zones] (2) Benthic Macroinvertebrates. TRRC shall collect quantitative samples of benthic macroinvertebrates immediately upstream and downstream of each proposed location of disturbance during rail construction activities. The collected specimens shall then be counted and identified following the Montana Department of Environmental Quality’s Rapid Bioassessment Protocols for Sampling and Sample Analysis Standard Operating Procedures. [Tongue River I, Condition 9.1(1)(b); Tongue River II, Aquatic Condition A.9.2(1)(b), modified to clarify the most useful techniques for sampling benthic macroinvertebrates] (3) Fish Survey. Prior to construction of each rail segment, TRRC shall conduct a fish survey and fish habitat survey. The fish survey shall be conducted to estimate population and to monitor potential mortality or emigration due to construction impacts. Mark-recapture methods shall be incorporated in each survey. TRRC’s
fish habitat survey shall be conducted to determine habitat value, quantity,
and utilization. In general, methods
shall follow the methods used in recent work on the (a) Habitat type. (b) Sampling gear used (hoop net, fyke net, electrofishing, seines, etc.). (c) Species present (number, age class, length, and weight). (d) Relative abundance by species. (e) Catch per unit effort (before and after construction). If determined to be necessary by the Task Force, a spawning habitat potential survey shall be conducted at each proposed bridge location as well as in areas of proposed riprapping and other perennial, intermittent, and ephemeral draws that the railroad crosses. Sampling periods for the spawning survey shall be early spring after ice breakup, after peak runoff, and in the fall. [Tongue River II, Aquatic Condition A.9.2(1)(c), modified to broaden the purpose of the surveys] Mitigation Measure 35 (Aquatic Mitigation Techniques). With the exception of construction of the portion of the rail line described in Mitigation Measure 87 (the Miles City Fish Hatchery), prior to construction of each rail segment and once aquatic resource sampling is completed and detailed data on the aquatic resources to be affected has been obtained, TRRC shall develop appropriate mitigation measures for approval by the Multi-agency/Railroad Task Force in accordance with the process set forth in Mitigation Measure 14. These mitigation measures may include the following, as appropriate: (1) Preparation of a construction schedule which, if possible and practical, provides for instream work at those times that are (a) least critical to the specific fishery or aquatic resource occurring at a site, and (b) least conducive to sediment transport. These periods may differ by stream and species affected. (2) Development of special procedures for the handling of displaced materials and petroleum products during construction in order to prevent introduction of such materials into the aquatic system. (3) Filtering of silty water, which would result from dewatering for footing construction, through settling pond systems. (4) Assuring that riprap is washed and essentially silt free. (5) Double-shifting
of work crews at river crossing sites to minimize the duration of construction
activities in or near river or stream banks.
[Tongue River II, Aquatic Condition A.9.2(2), modified by
minor edits] Soils and Geology Mitigation Measures Mitigation
Measure 36 (Stormwater Pollution Prevention Plan). TRRC shall prepare a Stormwater Pollution
Prevention Plan (SWPPP) and an Erosion Control Plan using Montana Department of
Environmental Quality Guidelines Best Management Practices (BMPs) and shall
obtain coverage under the Montana Pollutant Discharge Elimination System
General Permit for Storm Water Discharges Associated with Construction
Activity. Prior to construction of each
rail segment, TRRC shall determine which BMPs shall be employed at different
locations in the project area. The SWPPP shall identify areas that have a high potential for soil erosion due to topography, slope characteristics, facility activities, and/or other factors. (Generally, areas with little or no vegetative cover, 0-25 percent on slopes greater than or equal to 15 percent, have a high potential for soil erosion.) To determine areas of high erosion potential, TRRC shall consult with the County Natural Resource Conservation Service, research, as appropriate, published soil survey reports, and/or conduct soil/geologic studies. The SWPPP may include the use of sediment basins, berms, filter strips, covers, diversion structures, sediment control fences, straw bale dikes, seeding, sodding, and/or other control structures or BMPs. The SWPPP shall identify and locate the BMPs to be used during and after construction to control sediment discharges to surface waters. The SWPPP shall include a description of appropriate storm water BMPs, which TRRC shall implement. The SWPPP shall also include a schedule for implementation and address the following: (1) Individual(s) responsible for preventing pollution and for implementing storm water management BMPs. (2) Risk identification and assessment/material inventory. (3) Spill prevention and response procedures. (4) Storm water management. (5) Sediment and erosion prevention. (6) Visual inspections. (7) Record keeping and internal reporting. (8) Non-storm water discharges. [Tongue River III, new] Mitigation Measure 37 (Saline and Sodic Soils). TRRC shall, to the maximum extent feasible, avoid saline and sodic soils in its construction of these rail lines. Where possible, saline or sodic soils shall be buried, and topsoil more conducive for revegetation left on the finished surface to aid in revegetation efforts and reduce erosion. [Tongue River III, new] Mitigation Measure 38 (Geotechnical Investigations). Prior to beginning construction of these lines, TRRC shall conduct geotechnical investigations to identify soils/bedrock in cut areas with the potential for slumping to occur following construction. In areas with a potential for slumping, TRRC shall include, as appropriate, engineering controls such as flattened slopes, adequate drainage, retaining structures, geotechnically designed stabilization techniques, terracing and surface water-runoff control. [Tongue River III, new] Mitigation Measure 39 (Slumping). If slumping occurs during construction of these lines, TRRC shall institute remedial actions immediately following a slope failure. These actions shall include, as appropriate, implementation of emergency sediment control structures such as furrows, removal of slumped material to a location that will not allow erosion and transport of this material to any waterways, implementation of measures to promote revegetation, and a geotechnical evaluation, if feasible, to determine the best way to prevent additional slumping. Remedial action also may involve, as appropriate, the installation of drains or adding material to the toe of the slump to stabilize it. [Tongue River III, new] Mitigation Measure 40 (Erosion). Prior to beginning construction of these lines, TRRC shall perform an analysis to determine the potential for erosion (wind and water) at proposed cut and fill locations. The analysis shall compare slope lengths and gradients to determine the optimum gradients and mitigation measures for minimizing erosion at each proposed cut and fill location. [Tongue River III, new] Mitigation Measure 41 (Sediment Delivery). Prior to beginning construction, TRRC shall assess the potential for construction and operation of these rail lines to generate, transport and deliver sediments to a given body of water. Contributions of sediments shall be measured as “bedload,” or material that is transported along the bed of a stream rather than in suspension. “Woman pebble” counts (woman pebble is a methodology for sampling and categorizing substrate) may be used for sediment data. TRRC shall also conduct a pre-construction assessment that includes an evaluation of the potential in-stream effects of sediment delivery to a given water body and conformance with pending or completed Total Maximum Daily Loads and associated water quality restoration plans. [Tongue River III, new]. Mitigation
Measure 42 (Soil Survey). Prior to
any construction of these lines, TRRC shall conduct a soil survey along the
alignment, including a review of soil survey data from Big Horn and Rosebud
counties and local conservation districts. As part of this survey, TRRC shall
obtain, query, review, and interpret digital soil survey maps for the area
within 300 meters of the rail alignment.
Soils with similar characteristics along the route shall be grouped, and
detailed descriptions of each grouping shall be prepared. The descriptions shall include information
regarding the soil group’s distribution, structure, permeability, and
erodibility. After completing its
survey, TRRC shall prepare a series of reports to be made available to Hydrology and Water Quality Mitigation Mitigation Measure 43 (Water Quantity and Quality). To assure that overall water quantity and quality are not unnecessarily altered or diminished by the construction of these lines, TRRC shall submit detailed information about its plans for construction, for review and approval, to applicable agencies, including the U.S. Army Corps of Engineers, local conservation districts, and the Water Protection Bureau of the Montana Department of Environmental Quality prior to construction. [Tongue River II, Hydrology and Water Quality Condition (1), modified to reflect current state agency and make minor additional changes] Mitigation
Measure 44 (Streambed Crossings).
During design, TRRC shall consult with and meet the reasonable requests
of Montana Department of Natural Resources and Conservation, Montana Department
of Environmental Quality, the U.S. Army Corps of Engineers, and the local
conservation districts for bridge crossings over the streambed of the Mitigation Measure 45 (Permitting and Bank Stabilization). TRRC shall consult with the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) to implement the Corps’ permit requirements under Section 404 of the Clean Water Act and EPA’s riverbank stabilization methods at bridge crossings and riprap areas in order to prevent or reduce the impacts of soil erosion and sedimentation loading to area streams and the Tongue River. Appropriate methods may include placing or planting logs, trees, and other vegetative plantings with rock riprap along bridge sites and stream-encroachment areas. To prevent unnecessary degradation of water quality due to erosion, revegetation efforts shall begin as soon as possible after construction is completed in a given area. [Tongue River II, Hydrology and Water Quality Condition (3), modified to provide additional clarity regarding riverbank stabilization methods] Mitigation
Measure 46 (Streambed Crossing Construction). Rail construction activities involving stream
crossings, including bridges and culverts and activities requiring stream-bank
encroachments (riprap, for example), shall occur during periods of low or no
flow in the streams affected. [ Mitigation Measure 47 (Bank Stabilization). In constructing these lines, TRRC shall stabilize banks with naturally occurring trees, shrubs, and grass. Riprap or gabions shall be used only as a supplement where such methods would improve fish habitat, or in cases where engineering requirements so dictate, such as downstream from culverts. [Tongue River II, Vegetation Condition A.9.3.2(1)(d)1, modified for minor edit] Mitigation
Measure 48 ( Mitigation
Measure 49 (Culverts). TRRC shall
ensure that all culverts and other drainage structures installed at
non-perennial stream crossings during construction of these lines comply with
the design criteria guidelines of the American Railway Engineering and
Maintenance of Way Association, established in the year 2000. This means that at a minimum, culverts shall
be designed to discharge a 25-year flood without static head at entrance and a
100-year flood using the available head at entrance, the head to two feet below
base of rail, or the head depth of 1.5 times the culvert diameter/rise,
whichever is less. Additionally, TRRC
shall incorporate the culverts into the existing grade of the streambed to
avoid, to the maximum extent possible, changing the character of the streambed
and impacting migrating amphibians and reptiles. Open bottom culverts shall be used to the
extent feasible. The final design of culvert sizing should be determined by the
project engineer based on the best available on-site information [Tongue
River II, Hydrology and Water Quality Condition (4), modified to reflect
current industry practice and include migrating species] Mitigation
Measure 50 (Perennial Streams).
Where possible, TRRC’s final alignment for these lines shall be designed
to avoid the floodplain of perennial streams.
Where the railroad grade infringes upon the floodplain, TRRC shall
install drainage structures to assure that the grade does not restrict or
reroute the 25-year flood. [Tongue
River II, Hydrology and Water Quality Condition (5), modified to reflect
current Mitigation Measure 51 (Bridge Design). Prior to beginning construction of these lines, TRRC shall prepare an analysis for the Montana Department of Natural Resources and Conservation, documenting that the final design for any bridges constructed over rivers and perennial streams located in a designated 100-year floodplain shall not increase the upstream elevation of the 100-year flood by more than 0.5 feet or significantly increase flood velocities. If TRRC’s analysis concludes that any bridge would increase the upstream elevation of the 100-year flood by more than 0.5 feet or significantly increase flood velocities, TRRC shall redesign the bridge to reduce these impacts to a less than 0.5 foot increase in the 100-year flood elevation. [Tongue River III, new] Cultural Resources Mitigation Mitigation
Measure 52 (Programmatic Agreement). To
protect cultural and historic resources, TRRC shall comply with the provisions
of the revised Programmatic Agreement for these lines, which has been executed. [Tongue River II, Cultural
Resources Condition (1), modified to reflect that Transportation and Safety Mitigation Mitigation Measure 53 (Construction-worker Transportation). During construction, TRRC shall encourage its contractors to provide laborers with daily transportation to the work site from a central location. [Tongue River II, Transportation Condition (1)] Mitigation
Measure 54 (Access Road). To the
extent possible, TRRC shall confine all construction-related traffic to a
temporary access road within the right-of-way ( Mitigation
Measure 55 (Memorandum of Agreement).
As agreed to by TRRC and the Montana Department of Transportation ( Mitigation
Measure 56 ( Mitigation Measure 57 (Speed Limits). All TRRC vehicles and equipment, and vehicles and equipment owned and operated by TRRC contractors working on the project, shall strictly adhere to speed limits and other applicable laws and regulations when operating such vehicles and equipment on public roadways. [Tongue River I, Condition 4.2 (3), modified by minor edits] Mitigation Measure 58 (Traffic Control Devices). TRRC shall comply with the Montana Department of Transportation’s Manual of Uniform Traffic Control Devices for work zone safety. [Tongue River II, Transportation Condition (4), modified to reflect current agency requirement] Mitigation Measure 59 (Safety Meetings). TRRC shall adhere to applicable Federal and state construction safety regulations and Best Management Practices to minimize the potential for construction-related accidents. TRRC shall require its construction contractors to conduct safety meetings for their workers to ensure that each person understands safety measures and procedures. [Tongue River II, Safety Condition (1), modified to clarify that TRRC shall use Best Management Practices] Mitigation
Measure 60 (Emergency Response Plan).
Prior to beginning construction of these rail lines, TRRC shall develop
an internal Emergency Response Plan consistent with Mitigation Measure 61 (Emergency Response Coordination). TRRC shall establish cooperative relationships with the Federal, state, and local agencies with responsibility for disaster/emergency response in the area. TRRC shall provide operational plans and copies of the Emergency Response Plan identified in Mitigation Measure 60, when it is available in draft form, to all such agencies and incorporate their comments as appropriate in its final Emergency Response Plan. The agencies to be contacted shall include, at a minimum, Disaster and Emergency Services Division of the Department of Military Affairs, Helena; rural fire departments along the entire route of the lines; local ambulance and emergency medical services and air evacuation services in Billings and Sheridan; the Montana Department of Environmental Quality, specifically including the Remediation Division; Montana Department of Fish, Wildlife and Parks; Montana Department of Natural Resources and Conservation; the Northern Cheyenne Tribe; the Bureau of Land Management; U.S. Fish and Wildlife Service; and other local agencies or other groups identified by these agencies and entities as key to disaster response. [Tongue River II, Safety Condition (3), modified to clarify that all such agencies shall receive a copy of the plan and make minor edits] Mitigation Measure 62 (Spill Prevention). TRRC shall develop, in cooperation with appropriate Federal, state, and local agencies, a plan to prevent spills of oil or other petroleum products (gasoline, diesel fuel, solvents), during construction, operation, and maintenance of these rail lines. TRRC’s Spill Prevention Plan shall include measures pertaining to oil spills set forth in the mitigation plan in the Tongue River II DEIS. The plan developed by TRRC shall include conditions that shall be imposed on companies and contractors involved in construction of these lines. The plan shall provide emergency notification procedures, including a priority list of specific names and phone numbers of designated contacts (government and private) that are to be notified in case of events such as a fuel spill, range fire, or medical emergency during construction, operation and maintenance of the rail lines. The following items shall be included in the plan: (1) Procedures for reporting a spill. (2) Definition of what constitutes a spill. (3) Methods of containing, recovering, and cleaning up a spill. (4) Preventive measures that will be employed to prevent ground water and surface water contamination. (5) Best Management Practices that would apply to areas in and around rail yards to reduce the potential of ground water and surface water contamination. (6) A list of equipment needed to remediate a spill and its location. (7) A list of all governmental agencies and management personnel to be contacted and coordinated with, including but not limited to the following: (a) Disaster and Emergency Services Division of
the Department of Military Affairs, (b) Rural fire departments along the route. (c) Local ambulance and emergency medical
services, as well as air evacuation services in (d) Montana Department of Environmental Quality, especially the Remediation Division. (e) Montana Department of Fish, Wildlife, and Parks. (f) Montana Department of Natural Resources and Conservation. (g) Northern (h) Bureau of Land Management ( (i) Other local agencies or groups that are identified by the agencies and entities above as key to disaster remediation. (8) Assurances that techniques and procedures to be employed in cleanup are the best practicable technology currently available. [Tongue River II, Safety
Condition (8), which incorporates by reference Sections A.7.3.(1) a, A.7.3(2)
a-i, and A.7.3(4), modified (1) to incorporate language of sections referred to
and to clarify that the above measures apply to the three rail lines, and (2)
to clarify roles of Mitigation Measure 63 (Construction Sites). TRRC shall remove all litter, debris, and soils associated with petroleum spills prior to reclamation of construction sites. A state-approved landfill shall be used. [Tongue River II, Vegetation Condition, A.9.3.2(1)(d)2, modified by minor edits] Mitigation Measure 64 (Oil and Fuel). Prior to construction of these lines, TRRC shall develop appropriate guidelines to be used by individual rail construction contractors, including (1) steps to use during refueling to guard against overflows, (2) storage of fuel in metal storage tanks surrounded by impervious dikes that are capable of containing greater than the capacity of the tank, (3) removal of waste oil to appropriate sites, and (4) maintenance of equipment in good running order during performance of construction and routine maintenance activities. [Tongue River II, Safety Condition (9), modified by minor edits] Mitigation Measure 65 (Herbicide Spills). If an herbicide spill occurs, TRRC shall respond by immediately containing the spill, notifying the appropriate Federal, state, and local agencies, and implementing appropriate clean-up procedures. [Tongue River II, Safety Condition (10), modified to provide additional clarity regarding TRRC’s actions] Mitigation Measure 66 (Train Operations). TRRC shall adhere to all reasonable Federal, state, and local requirements regarding train operations, including requirements that relate to maximum durations of crossing blockage, speed limits within and outside of incorporated areas, and candlepower for train lighting. [Tongue River I, Condition 4.3(3), modified to clarify the intent and responsible parties] Mitigation Measure 67 (Descending Grades). If a train’s speed reaches 5 mph more than the train’s maximum authorized speed on descending grades of 2 percent or more, TRRC’s trains shall come to a complete stop as quickly as possible, using an emergency application of the train’s air brakes. (1) After the train has stopped, the train shall be secured by applying additional hand brakes, and once secured, the train shall be inspected and no further train movement shall be made until authorized by a designated railroad employee. (2) TRRC shall conduct an immediate investigation into the cause of any incident in which the train’s speed reaches 5 mph more than the train’s authorized maximum speed and shall initiate appropriate corrective action. (3) Event recorder data shall be routinely inspected to ensure full compliance with these requirements. [Tongue River III, new] Mitigation
Measure 68 (Hazardous Materials Transport).
In the event that TRRC should transport hazardous materials, TRRC shall
comply with the requirements of the Hazardous Materials Transportation Act (49
U.S.C. 1080 et seq.) and its governing regulations. TRRC shall also comply with the Federal
Railroad Administration (FRA) hazardous materials regulations for rail
transport (including 49 Air Quality Mitigation Mitigation Measure 69 (Fugitive Dust). When vegetation is removed from the right-of-way, TRRC shall clear the smallest possible amount of cover to minimize impacts of wind erosion and fugitive dust. [Tongue River II, Air Quality Condition (2), modified to clarify the intent of the measure] Mitigation Measure 70 (Revegetation). Where devegetation has taken place, TRRC shall begin revegetation as soon as possible. Where immediate revegetation is not possible, TRRC shall implement alternative stabilization measures, such as matting and mulching. [Tongue River II, Air Quality Condition (3)] Mitigation Measure 71 (Site Watering). TRRC shall suppress dust at all work areas by using water trucks, and shall make water available to local landowners, governmental agencies, or associations for the purposes of dust suppression. TRRC shall conduct dust suppression activities regularly and frequently during dry periods. [Tongue River II, Air Quality Condition (4)] Mitigation Measure 72 (Open Burning). TRRC shall conduct any open burning in strict accordance with local or other applicable regulations, and shall obtain all necessary permits and observe all necessary safety precautions. [Tongue River II, Air Quality Condition (5)] Mitigation
Measure 73 (Inspection and Maintenance).
TRRC shall subject all heavy equipment and vehicles used in the
construction, operation, and maintenance of these railroad lines to a regular
inspection and maintenance schedule to ensure that operation complies with
manufacturer’s specifications and that equipment is running as cleanly and
efficiently as possible. [Tongue
River II, Air Quality Condition (1)] Noise and Vibration Mitigation Mitigation Measure 74 (Construction Timing). To the extent practicable, TRRC shall schedule major noise-producing construction activities during the weekday and daylight hours to limit disturbances during more sensitive times of day. [Tongue River II, Noise Condition (1)] Mitigation Measure 75 (Construction Equipment). All equipment used for construction shall comply with all reasonable Federal, state, and local noise regulations and ordinances. [Tongue River R I, Condition 6.1(3), modified to clarify that all equipment used in construction shall comply with reasonable noise regulations] Mitigation Measure 76 (Dam Vibration). Prior to construction of the Western Alignment, TRRC shall conduct a seismic analysis based on local geology and specific blasting plans to quantify the risk of construction-related activities to the Tongue River Reservoir Dam. TRRC shall consult with Montana Department of Natural Resources and Conservation during the development of the geotechnical-drilling/blasting plans for construction of those portions of the Western Alignment located within two miles of the dam, to limit peak particle velocity and minimize vibration impacts that may occur. [Tongue River III, new] Mitigation
Measure 77 (Speed Limits). During railroad
operations, TRRC shall minimize the speed of trains in incorporated areas and
in the unincorporated community of Mitigation Measure 78 (Quiet Zone). TRRC shall consider establishing a quiet zone for one or more communities along these rail lines, if appropriate, under the Federal Railroad Administration’s Use of Locomotive Horns at Highway-RailGrade Crossings; Final Rule (April 27, 2005), which became effective June 24, 2005. [Tongue River III, new] Mitigation
Measure 79 (Schools). In the case of
schools in the Mitigation
Measure 80 (Recordation of Noise Contours).
In order to prevent unintentional development within the 65 dBA noise contour,
TRRC shall provide a copy of a map to each county and city planning department
along the rail lines, depicting the 65 dBA noise contour. The planning departments can make this
information available to landowners so that they can make informed decisions
about future development. [Tongue
River III, new with minor edits] Socioeconomic Mitigation Mitigation
Measure 81 (Community Issues). TRRC
shall appoint a representative to consult with the affected county and local
governments for the purpose of assisting impacted communities in addressing potential
social and economic problems related to the construction and operation of these
lines. To accomplish this, TRRC shall
provide all practical assistance to the government planning agencies
involved. [ Mitigation
Measure 82 ( Mitigation
Measure 83 (Mine Development). TRRC
shall make available to local governments and to the Northern Cheyenne Tribe
all public data and studies that it is aware of concerning the facilities and
services that may be required as a result of mine development in the area of
these lines. [Tongue River II,
Social and Economic Condition (1)] Mitigation Measure 84 (Protection of MCFH Water Supply Pipelines). As agreed to by TRRC and the Montana Department of Fish, Wildlife and Parks (MTDFWP), TRRC shall relocate, as necessary, portions of the water supply pipelines from the Yellowstone River and Tongue River so that each pipeline crosses the rail right-of-way at a right angle or perpendicular to the rail alignment. To ensure structural integrity of the water supply pipelines, the portion of each pipeline lying perpendicular beneath the rail alignment shall be encased in a reinforced concrete pipe (RCP). The RCP shall be of sufficient size to allow for inspection and maintenance of the water supply pipelines. Access to the pipelines beneath the rail alignment shall be provided by installation of reinforced concrete manholes, located on each side of the rail alignment. The RCP manholes shall meet or exceed the American Railway Engineering and Maintenance of Way Association’s standard specifications for installation of utilities underneath railway embankments. The design plans for the relocated section of the water pipelines and all associated elements shall be prepared by TRRC and provided to the MTDFWP for review and approval prior to being constructed. TRRC shall locate and protect (and replace if harmed) outgoing water pipelines that would impact operations if affected by rail construction or operation. [Tongue River III, new] Mitigation Measure 85 (Weed Control on MCFH). As agreed to by TRRC and the Montana Department of Fish, Wildlife and Parks (MTDFWP), TRRC shall use only mechanical means of weed control in its right-of-way adjacent to the Miles City Fish Hatchery between the points where the rail line crosses Interstate 94 to the connection with the BNSF Railway Company main line. If it becomes necessary to utilize herbicides to control noxious weeds along the right-of-way in this area, herbicides will only be used with prior approval from the MTDFWP, as to the type of herbicide, application rate, means of application, wind speed and direction. [Tongue River III, new] Mitigation
Measure 86 (MCFH Continuing Consultation). TRRC shall continue to make itself available
to consult with Montana Department of Fish, Wildlife and Parks (MTDFWP) to
reach consensus on any remaining issues concerning the environmental effects on
the Miles City Fish Hatchery from railroad construction and operations, for a
period of up to six months after the effective date of the Board’s final
decision in Tongue River Mitigation
Measure 87 (MCFH). TRRC shall adhere
to the reasonable mitigation conditions imposed by the Montana Department of
Fish, Wildlife and Parks in any easement granted by the State allowing TRRC to
cross the Miles City Fish Hatchery. [Tongue River III, new] Mitigation
Measure 88 (Department of Agriculture).
TRRC shall adhere to the reasonable mitigation conditions imposed by the
U.S. Department of Agriculture (USDA) in any easement granted by USDA allowing
TRRC to cross the LARRS property line. [Tongue
River Spotted Mitigation Measure 89 (Tree Buffers). As agreed to by TRRC, TRRC shall provide a
tree buffer between the Additional Mitigation
Measures Mitigation Measure 90
(Paleontological Resources). If
significant paleontological resources are discovered during surface disturbing
activities related to construction of any part of these lines, all work that
potentially would damage the resource shall cease, the area of concern shall be
protected, and the Board notified as soon as possible. Appropriate mitigation measures then shall be
developed by Mitigation Measure 91
(Compensation Program). TRRC shall participate in the development of a
reasonable compensation program for lost wildlife habitat along these rail lines
prior to beginning construction on any portion of the lines. The goal of the compensation program shall be
to ensure that there is no net decrease in wildlife-habitat values resulting
from the project. Habitat values of
acreage lost shall be assessed using the U.S. Fish and Wildlife Service’s
Habitat Evaluation Procedure. TRRC shall
be responsible for acquiring land (through purchase, conservation easements or
other measures) and enhancing the wildlife-habitat value on that land to
achieve the no-net-loss goal, and developing and implementing a monitoring plan
to evaluate success of enhancement measures.
Monitoring shall continue through the reporting period described in
Mitigation Measure 17. The process of
valuing habitat loss, acquiring and enhancing new lands, and implementing the
monitoring plan shall be done by TRRC with prior approval of the Multi-agency/Railroad
Task Force in accordance with the process set forth in Mitigation Measure
14. The process of valuing habitat loss
for individual species or habitat types shall include an as needed analysis of
potential “habitat fragmentation,” i.e., assessment of the direct loss
of wildlife habitat, reduction in the size of existing habitat patches,
creation of more edge-type habitat, and creation of barriers that block
movement of wildlife between patches. An
example of appropriate habitat compensation could include the purchase by TRRC
of “cutoff” land parcels containing good wildlife habitat, and the donation of
these lands to the Montana Department of Fish, Wildlife, and Parks for
beneficial wildlife management. [Tongue
River I, Condition 10.1(1); Tongue River II, Terrestrial Condition
A.9.3(1), modified to clarify the goal of the compensation program] Mitigation Measure 92
( [1] This decision also embraces Finance Docket No. 30186, Tongue River R.R.—Rail Construction and Operation—In Custer, Powder River and Rosebud Counties, MT, and Finance Docket No. 30186 (Sub-No. 2), Tongue River Railroad Company—Rail Construction and Operation—Ashland to Decker, Montana. [2] This
application was originally filed by Tongue River Railroad Company, a
partnership, which has since been converted to a corporation to which its
assets have been transferred. Tongue
River Railroad Company, Inc. has been substituted as the applicant in the Tongue
River III proceeding, and this decision refers to the applicant in all
three [3] The remaining
portion of that line approved for construction will not be affected by this
realignment. [4] Tongue
River RR Co.—Const. and Oper.— [5] Tongue
River R.R.—Construction and Operation—In Custer, Powder River and Rosebud
Counties, MT, Finance Docket No. 30186 (ICC served Sept. 4, 1985), modified
(ICC served May 9, 1986), pet. for judicial review dismissed, Northern
Plains Resource Council v. ICC, 817 F.2d 758 (9th Cir.), cert. denied,
484 U.S. 976 (1987). [6] An
Environmental Impact Statement (EIS) is the detailed written statement required
by NEPA for “major federal actions significantly affecting the quality of the
human environment.” 42 U.S.C.
4332(2)(c). See 40 CFR 1508.11,
49 CFR 1105.4(f). A supplement to an EIS
is prepared where, as here, pertinent new environmental information is
presented after a Final EIS has been issued.
See 40 CFR 1502.9(c)(1). [7] The SEIS was
prepared in coordination with three cooperating agencies: the U.S. Department of the Interior, Bureau
of Land Management (BLM); the [8] Under 49
U.S.C. 10901, we must authorize the construction and operation of a new line
“unless the Board finds that such activities are inconsistent with the public
convenience and necessity.” [9] See Dakota,
[10] See Tongue
River Railroad Company – Rail Construction and Operation – [11] See Tongue
River Railroad Company—Construction and Operation—Western Alignment, STB
Finance Docket No. 30186 (Sub-No. 3) (STB served Mar. 11, 2003) at n.8. [13] BNSF currently
has two routes to utilities in the Upper Midwest—the main target market that
would be served by TRRC/BNSF—for traffic that originates in [15] See
Final SEIS, at 3-418 to 3-420. [19] As explained
more fully in the SEIS, this was the appropriate procedure because the agency
has already examined in detail the environmental impacts of the lines proposed
in Tongue River I and Tongue River II in the EISs prepared for
those proceedings. NEPA does not require
relevant environmental analysis that remains accurate to be redone. Moreover, SEA relied, where appropriate, on
the EISs of the [20] “Scoping” is
an open process under NEPA for determining the scope of environmental issues to
be addressed and their potential for significance. This process affords the public an
opportunity to assist in identifying important resources, issues, or concerns. [21] Draft SEIS at
3-6 to 3-9, 5-1 to 5-28. [22] Draft SEIS,
7-1 to 7-34. [23] A hybrid
alignment that would have combined the lower portion of the Four Mile Creek
Alternative with the upper portion of the Western Alignment to reduce potential
impacts to wildlife and federally listed species, was found not to be feasible
or practical for this project. See
Final SEIS at 3-43, 3-94, and Appendix I. [24] See
Draft SEIS at 1-15; Final SEIS at 1-19 to 1-20; Tongue River II at 23. [25] See Draft
SEIS at 1-17. [26] The Final SEIS
includes all of the comments. [27] The
recommended mitigation includes measures to minimize impacts associated with
the 100-year flood plain; require the preparation of detailed surveys of a
number of different types of wildlife, plants, and habitats prior to
construction of each rail line segment; further minimize impacts to aquatic
resources, wetland habitat, and plant and animal resources of special concern;
reduce impacts on the Miles City Fish Hatchery; provide more detail regarding
mitigation relating to vegetation; address impacts of saline/sodic soils and
soil slumping; minimize the impacts of blasting on the Tongue River Dam and
sediment production and delivery in the Tongue River; clarify conditions for
bridge and culvert construction; improve safety; better explain the Board’s
ongoing monitoring process; and minimize impacts on paleontologic
resources. See Final SEIS at
ES-4, ES-8 to ES-9. [30] See Southern
Electric Railroad Company—Construction Exemption— [31] TRRC has
provided an operating plan with TRRC as the operator. [32] Pub. L. No.
104-88, 109 Stat. 803 (1995). Prior to 1980,
the ICC had been directed to scrutinize rail construction proposals closely to
prevent excess capacity, and the ICC was to issue a license only if it found
that the PC&N “require” the new line.
See former 49 U.S.C. 10901(a) (1978). In the Staggers Rail Act of 1980, Pub. L. No.
96-448, 96 Stat. 1895 (1980), Congress relaxed the standard by providing that
the ICC need only find that the PC&N “permit” a proposed construction. See former 49 U.S.C. 10901(a)
(1994). With ICCTA, Congress completed
its shift in policy, directing that the Board “shall” issue construction
licenses “unless” the agency finds a proposal “inconsistent” with the
PC&N. See current 49 U.S.C.
10901(c). [33] See Mid
States, 345 F.3d at 552; Class Exem. for the Construction of Connecting
Track, 1 S.T.B. 75, 79 (1996). [34] See 1998 DM&E, 3 S.T.B. at 863. [35] See Mid States, 345 F.3d at 533; Burlington Northern, Inc.—Construction and Oper., 348 I.C.C. 388, 400 (1976), citing Chesapeake & O. Ry. Co. Construction, 267 I.C.C. 665 (1947). [36] 109 Stat.
822-29, 942. [37] See e.g., Texas & Pac. Ry. v.
Gulf, Etc., Ry., 270 [38] [41] Should helper
locomotives be necessary, Mr. Fix asks the Board to conduct additional
environmental study to examine their fuel consumption. [42] Applicant’s
1998 Reply at 22. [43] [44] [45] [46] See
Applicant’s 2003 Rebuttal, Revised Att. 1 at n.24. [49] See Mid
States, 345 F.3d at 552; 2002 DM&E, 6 S.T.B. at 46. [50] Eminent domain
proceedings are governed by state law.
In rail construction cases, the Board determines whether the proposed
line is consistent with the PC&N.
The applicant is responsible for acquiring the land necessary to build
the line. See Dakota, [51] TRRC notes
that demand for [53] Also, Mr. Fix questions whether new mines around Decker will develop if there is coal bed methane well (CBM) development in the area. However, Mr. Fix fails to explain why such wells would preclude mine development. [54] See 2006
DM&E at 15. [55] See Applicant’s 1998 Reply at 10 n.10. [56]
TRRC
submitted evidence showing that utility market demand for Montana NPRB coal was
35,292,000 tons in 1990 and 33,438,000 in 2004.
See Final SEIS at 2-40; Statement of Francis A. Roberts In Response
to SEA Information Request of Aug. 29, 2005, at Table 2. It also showed that the customer base for
NPRB coal from [58] A utility
substituting SPRB coal from [59] Draft SEIS
Table 2-2 at 2-4; Applicant’s 2003 Supplement, Supplemental V.S. Morey (total
tonnage forecast chart). [60] See
Applicant’s 2003 Rebuttal, V.S. Gustafson at 19. [62] [63] See 1998 DM&E, 3 S.T.B. at 878. [64] See
Final SEIS at Appendix J. [65] See
Applicant’s 2003 Supplement at Revised Exhibit G. [66] Indeed, TRRC’s
revenue projections appear conservative given the current capacity constraints
in the railroad industry. [67] See Mid
States, 345 F.3d at 552. [68] See
Applicant’s 2003 Rebuttal, Revised Att. 1 at n.24. On the Western Alignment, trains coming from
Decker and [69] To meet the increasing demand, BNSF has entered an agreement with UP to construct more than 40 miles of triple and quadruple track along the Joint Line to meet the current and future forecasted demand for Wyoming PRB coal. See UP/BNSF joint press release dated May 8, 2006. [70] See
Final SEIS at 2-51 to 2-52 & Appendix J.
[71] Final SEIS at
2-58. [72] For example,
as the Draft SEIS explains (at 2-4), these lines would reduce the round trip
mileage between existing coal mines in the Decker area and Midwestern utilities
on BNSF’s existing line by more than 320 miles. [73] Applicant’s
2003 Rebuttal, V.S. Gustafson at 15. [74] DM&E would
provide east-west service on a route that would reduce coal transportation
distances as much as 390 miles to various electrical generation facilities in [75] See
Draft SEIS at 4-170. NPRC argues that
182 BNSF positions will be lost when the loss of administrative and support
jobs is considered. However, most, if
not all, of BNSF's administrative and support staff should retain their jobs
because their services will still be necessary in connection with the [76] Draft SEIS at
4-169. [77] TRRC’s updated projections estimate that 98.5 employees ultimately will be needed to operate these lines as routed over the Western Alignment. See Applicant’s 2003 Supplement, V.S. Leilich at 3. [79] UTU-GCA/MT asks that we impose labor protective conditions to safeguard those displaced by the construction and operation of the new line. However, we do not have that discretion. See 49 U.S.C. 10901(c). [80] See, e.g.,
Applicant’s 2003 Supplement, V.S. Morey at Table 1; Final SEIS at 2-40 to 2-41. [81] The fully
executed PA is set out at Appendix C of the Final SEIS. See also Draft SEIS at 4-118 to
4-127; Final SEIS at 2-21 to 2-22. The
work SEA performed to identify potential impacts on cultural resources in the
vicinity of the Western Alignment is reported in section 4.3.5.2 and 4.3.5.3 of
the Draft SEIS and is summarized in the Final SEIS at 3-28 to 3-30 and 3-114 to
3-115. [82] SEA’s outreach
efforts included letters and phone calls directed to members of the Northern
Cheyenne Tribe, Arapaho Business Council, Crow Tribe Council, Shoshone Business
Council, Oglala Sioux Tribal Council, and Standing Rock Sioux Tribal
Council. The Northern Cheyenne Tribe
participated in the Tongue River I proceeding as a cooperating
agency. In the Tongue River II
proceeding, a formal meeting was held with the Northern Cheyenne Tribe, and a
number of other tribes were contacted.
The [83] See Public
Citizen v. DOT, 541 [84] Marsh v. [85] Robertson
v. Methow, 490 [86] See Mid
States, 345 F.3d at 548-550. [87] The potential
local impacts of the DM&E project on coal usage and resulting air emissions
could not be predicted using NEMS or any available model. See DM&E Draft SEIS at 4-42
to 4-43; DM&E Final SEIS at 4-34 n. 52. Accordingly, as suggested by the court in Mid
States, 345 F.3d at 549-50, the Board followed the procedures established
by the Council on Environmental Quality in 40 CFR 1502.22(b) for addressing
local impacts when critical information is unavailable or incomplete. [88] See
Final SEIS, Chapter 2 at Master Response 23. [89] See Final
SEIS at 2-36 to 2-59. [90] TRRC expects
to handle 16.6 million tons of [91] The rate
sensitivity analysis in DM&E used 4 different rate assumptions: a percentage rail rate decrease proportionate
to the mileage savings of DM&E’s proposed route over the existing UP and
BNSF routes (the most likely rate scenario based on the Board’s decisions in DM&E),
a rail rate decrease twice that size (the “Low7Pct scenario”), and, for
comparison purposes, rate increases of equivalent sizes. [94] Commercial
quantities of CBM gas exist within coal-bearing geological formations, and
large quantities of CBM gas are currently collected throughout southeastern [99] See id.
at ES-1, n.1, 1-30 n.23. [100] SEA has
calculated only a 0.32 estimated annual train derailment rate for the Western
Alignment, in comparison to a 0.55 rate for the Four Mile Creek
Alternative. See id. at
1-30. [101] See id.
at ES-2, 1-30. [102] See id.
at ES-3. [103] See id. [104] See id.
at ES-3. [105] See id. at ES-2. [106] See
id. at 1-31. [107] See id.
at ES-2 n.3, 1-31. [108] See id. [109] See
Draft SEIS at 1-17 to 1-18, 3-6 to 3-9, 5-1 to 5-28; Final SEIS at 1-20. [110] See
Draft SEIS at 5-1 to 5-28; Final SEIS at ES-7 to ES-8, 2-1 to 2-5, 2-6, 2-8,
2-10 to 2-11, 2-22, 2-32 to 2-33. [111] Final SEIS at
ES-4. [112] See
Draft SEIS, Section 6.4.3; Final SEIS at 2-32 to 2-33, 3-102 to 3-103, 3-299 to
3-300, and 3-431 to 3-432. [113] See
Final SEIS at ES-4, ES-8 to ES-9. [114] See
Final SEIS at 2-19. [115] [116] See id.
at 2-19 to 2-21, 3-27. [117] The hatchery
is used as a temporary holding area for rainbow trout, and it produces
warmwater fish species including walleye pike, brood bass, and crappie. All of these species of fish are used to
stock lakes, rivers, and reservoirs in the area. See [119] See
Final SEIS at 3-143. [120] We note that
the U.S. Fish and Wildlife Service has agreed that the work plan is an
appropriate and adequate way to address any potential effects of this project
on the pallid sturgeon, the species MTDFWP is primarily concerned about. See Final SEIS, Appendix D, and cover
letter to that agency’s Biological Opinion at 6. [121] The U.S.
Environmental Protection Agency (EPA), in a letter dated November 7, 2006, states
that it would prefer that Mitigation Measure 87 be revised to require TRRC to
meet all conditions imposed by the MTDFWP on any state-granted easement crossing
the Miles City Fish Hatchery. We will
leave the condition as SEA has drafted it.
As discussed above and in the SEIS (Draft SEIS, at 5-6 to 5‑9;
Final SEIS at ES-9), we are confident that TRRC and MTDFWP will be able to work
together cooperatively on a mutually acceptable solution to address the
remaining concerns relating to the fish hatchery now that the railroad has
agreed to implement the vibration monitoring work plan. Moreover, to address the potential of an
impasse, Mitigation Measure 86 specifically permits either TRRC or MTDFWP to
request that the Board develop a condition to address any concerns that the
parties cannot work out themselves.
Given this process, we agree with SEA that Mitigation Measure 87 should remain
as is. [122] A TMDL is the
amount of a pollutant that a water body may receive without exceeding
applicable water quality standards. [123] See
Final SEIS at 2-26 to 2-27 and 3-86 to 3-87.
[124] Final SEIS at
2-8 to 2-10. [125] Final SEIS at
2-10. [126] See [127] We note that EPA,
in its letter dated November 7, 2006, supports the changes made in the Final
SEIS to improve several of the mitigation measures recommended in the Draft
SEIS. [128] We see no
reason to modify Mitigation Measure 92 to require that the work plan for
further study of vibration at the Miles City Fish Hatchery be accepted by
MTDFWP, as the State suggests. Mitigation
Measure 86 already permits MTDFWP to ask the Board to impose further
mitigation, if warranted, following completion of the work plan. |