SURFACE TRANSPORTATION BOARD DECISION DOCUMENT
    Decision Information

Docket Number:  
EP_684_0

Case Title:  
SOLID WASTE RAIL TRANSFER FACILITIES

Decision Type:  
Decision

Deciding Body:  
Entire Board

    Decision Summary

Decision Notes:  
DECISION ADOPTED FINAL RULES THAT GOVERN LAND-USE-EXEMPTION PERMITS FOR SOLID WASTE RAIL TRANSFER FACILITIES.

    Decision Attachments

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    Full Text of Decision

37949

41948                                 SERVICE DATE – NOVEMBER 20, 2012

EB

 

SURFACE TRANSPORTATION BOARD

 

DECISION

 

Docket No. EP 684

 

solid waste rail transfer facilities

 

Digest:[1]  This decision adopts final rules that govern land-use-exemption permits for solid waste rail transfer facilities.

 

Decided:  November 14, 2012

 

AGENCY:  Surface Transportation Board.

 

ACTION:  Final Rules.

 

SUMMARY:  The Clean Railroads Act of 2008, Pub. L. No. 110-432, 122 Stat. 4848, (CRA) amended 49 U.S.C. § 10501(c)(2) to restrict the jurisdiction of the Surface Transportation Board (Board or STB) over solid waste rail transfer facilities.  The CRA also added three new statutory provisions—49 U.S.C. §§ 10908-10910—that address the Board’s regulation of such facilities, which is now limited to issuance of “land-use-exemption permits” in certain circumstances.  Under the CRA, a solid waste rail transfer facility must comply with all applicable federal and state requirements respecting the prevention and abatement of pollution, the protection and restoration of the environment, and the protection of public health and safety, in the same manner as any similar solid waste management facility not owned or operated by or on behalf of a rail carrier, except for laws affecting the siting of the facility that are covered by the land-use-exemption permit.  As required by the CRA, the Board issued interim rules in a decision served January 14, 2009.  Solid Waste Rail Transfer Facilities (2009 Decision), EP 684 (STB served Jan. 14, 2009).  Those interim rules were published in the Federal Register on January 27, 2009 (74 Fed. Reg. 4714) (2009 Rules).  Based on the comments received and further evaluation, the Board served a decision on March 11, 2011, which revised the 2009 Rules and sought comments on the changes.  Solid Waste Rail Transfer Facilities (2011 Decision), EP 684 (STB served Mar. 11, 2011).  The revised interim rules were published in the Federal Register on March 24, 2011 (76 Fed. Reg. 16,538) (2011 Rules).  After further evaluation and review of the comments received on the 2011 Rules, the Board now adopts the 2011 Rules as final rules with minor modifications.  The final rules are set forth in Appendix A.

 

DATES:  Effective date:  These rules will be effective on December 21, 2012.

 

FOR FURTHER INFORMATION CONTACT:  The Office of Public Assistance, Governmental Affairs, and Compliance, (202) 245-0238.  Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339.

 

SUPPLEMENTARY INFORMATION:  Under 49 U.S.C. § 10501(a), the Board has jurisdiction over “transportation by rail carrier.”  Section 10501(b), as modified by the ICC Termination Act of 1995 (ICCTA), Pub. L. No. 104-88, 109 Stat. 803 (1995), provides that both “[t]he jurisdiction of the Board over transportation by rail carriers” (which includes the carriers’ rail facilities, see 49 U.S.C. § 10102(9)), and “the remedies provided under [49 U.S.C. §§ 10101-11908]” are “exclusive,” and “preempt the remedies provided under Federal or State law.”  Prior to enactment of the CRA, the Board’s preemptive jurisdiction extended to solid waste rail transfer facilities owned or operated by rail carriers.  Accordingly, state permitting or preclearance requirements (including environmental, zoning, and often land-use requirements) that, by their nature, could be used to deny a railroad the right to conduct its operations or proceed with transportation activities at rail transfer facilities, including solid waste rail transfer facilities, as authorized by the Board, were preempted.  See 49 U.S.C. § 10501(b); N.Y. Susquehanna & W. Ry. v. Jackson, 500 F.3d 238, 252-55 (3d Cir. 2007); Green Mountain R.R. v. Vermont, 404 F.3d 638, 641-43 (2d Cir. 2005).  Other state actions related to these facilities were preempted if, as applied, they would have the effect of unreasonably burdening or interfering with transportation by rail carrier.  See N.Y. Susquehanna, 500 F.3d at 252; Green Mountain, 404 F.3d at 643.

 

The CRA modified the Board’s jurisdiction over solid waste rail transfer facilities.  The CRA provides that solid waste rail transfer facilities, as defined in 49 U.S.C. § 10908(e)(1)(H), must now comply with all applicable federal and state requirements (including environmental requirements) that apply to similar solid waste management facilities that are not owned or operated by or on behalf of a rail carrier, except as otherwise provided in the CRA.[2]  The CRA gives the Board the authority, if petitioned, to issue land-use-exemption permits that preempt state and local laws and regulations “affecting the siting” of such facilities (except to the extent that the Board requires the facility to comply with such provisions).  49 U.S.C. § 10909(f).[3]

 

THE FINAL RULES

 

            The Board received comments on the 2011 Rules.[4]  We now adopt final rules based on suggestions made in the parties’ comments and on the Board’s review of the revised interim regulations.  We address the comments received on the 2011 Rules and our revisions made in response to the comments below.  The attached Appendix A contains the final rules in full.

 

A.  Environmental Impact Statement (EIS) Notice

 

In the 2011 Decision, slip op. at 7-8, the Board concluded that an EIS generally should be prepared for each land-use-exemption-permit application.  NSWMA argues that, consequently, the Board should add separate environmental notice procedures to the CRA rules to allow for full public participation during the early stages of the Board’s environmental review, including “scoping”—the process that determines the issues to be addressed in an EIS.[5]  NSWMA points out that 49 C.F.R. § 1105.10(a) of the Board’s environmental rules requires an applicant for a Board action that warrants an EIS to give the Board’s Office of Environmental Analysis (OEA) six months’ notice prior to filing its application, but does not require the applicant to serve the notice on affected state and local agencies or otherwise publish it.[6]  NSWMA is concerned that, unless state and local officials are served with the § 1105.10(a) notice when it is filed at the Board, these public officials will lose the opportunity to participate meaningfully in “key EIS scoping proceedings” for projects seeking land-use-exemption permits.[7]  NSWMA contrasts the absence of advance environmental notice in the interim and revised interim CRA rules with the advance notice that the Board requires for applications for a land-use-exemption permit.[8]

 

We reject NSWMA’s assertion that the Board’s procedures do not give regional, state or local officials a meaningful opportunity to participate at the early stages of the EIS process and that additional notice is necessary.  The Board’s existing procedures provide that consultation letters are sent by the Board to potentially interested or affected federal, state, and local agencies, soliciting their comments on possible environmental impacts, prior to publication of a Notice of Intent to Prepare an EIS.  See Policy Statement on Use of Third-Party Contracting in Preparation of Envtl. Documentation, 5 S.T.B. 467 (2001); see also 40 C.F.R. § 1501.2(d)(2).  Thus, the Board’s existing procedures give public officials the opportunity for early input into the process of developing the scope of the Draft EIS.  But the opportunity for early participation in the environmental review process does not stop there.  The Notice of Intent to Prepare an EIS, which includes a description of the proposed action and provides a period for written comments on the draft scope of the EIS, is then published in the Federal Register and served.  49 C.F.R. § 1105.10(a)(2).  The scoping process also typically includes a meeting in the project area that gives state and local officials and members of the public an opportunity to be heard.  The Board issues a final scope of study for the EIS only after considering the scoping comments.[9]  Therefore, we find that no additional notice is necessary. 

 

            NSWMA also is concerned that state and local officials and the public will not receive notice of requests submitted by applicants to OEA seeking to reclassify the requirement that an EIS be prepared in particular cases under 49 C.F.R. §§ 1155.24(a)[10] and 1105.6(d) because such requests are not published in the Federal Register.[11]  We do not believe that Federal Register publication is necessary.  Section 1105.6(d) of the Code of Federal Regulations has been in effect since 1991.  See Implementation of Envtl. Laws, EP 55 (Sub-No. 22A) (ICC served July 31, 1991); 56 Fed. Reg. 36,104 (July 31, 1991).  In recent years, OEA has received a number of reclassification requests.  For example, rail construction cases normally require preparation of an EIS.  Nevertheless, in certain rail construction cases where there is little potential for significant environmental impacts, applicants have requested that OEA reclassify the level of environmental review to allow for the preparation of a more limited Environmental Assessment rather than an EIS.  Until now, however, we have not received any suggestions that Federal Register publication is needed to provide adequate notice of a request to reclassify the level of environmental review for a proposed action. 

 

Our CRA rules are designed to give interested state and local officials and the public the ability to protect their interest in having the Board conduct an appropriate level of environmental review of applications for land use exemption permits.  Sections 1155.20(a)(2) and 1155.22(b) will provide for notice to agencies and interested persons in the project area that an application for a particular land use exemption permit is to be filed.  Once a case is docketed at the Board, interested persons and agencies can keep track of the status of the case, including requests to reclassify the level of environmental review and any responses, by checking the Board’s website.  Moreover, state and local environmental officials are likely to have advance notice of proposed solid waste rail transfer facilities because these facilities would have to comply with the same applicable federal and state requirements as non-rail solid waste management facilities, except for laws affecting siting that are covered by the application for a land-use-exemption permit.  Finally, even if a request for reclassification of the EIS requirement is granted, state and local officials and the public have numerous opportunities during the environmental review process to argue to the Board that the environmental impacts of the project will be significant enough to require the preparation of an EIS.  See supra n.9.  When information emerges during the environmental review process to indicate that a proposed action could result in potentially significant environmental impacts, the Board will heighten the level of environmental review as appropriate.  See Norfolk S. Ry.—Joint Control & Operating/Pooling Agreements—Pan Am S., LLC, FD 35147 et al., slip op. at 2-3 (STB served Sept. 25, 2008) (suspending procedural schedule to prepare an Environmental Assessment in case where it had been originally determined that no environmental review was necessary).

 

B.  EIS Requirements

 

NJDEP argues that 49 C.F.R. § 1155.21(c) does not reflect the Board’s determination in 49 C.F.R. § 1155.24(a) that an EIS generally should be prepared for each land-use-exemption-permit application.[12]  Section 1155.21(c) states that an “applicant shall certify that it has submitted an Environmental and/or Historic Report . . . if an Environmental and/or Historic Report is required.”  49 C.F.R. § 1155.21(c) (emphasis added).[13]  NJDEP asks that the Board remove the clause “if an Environmental and/or Historic Report is required” from this section.

 

It would be inappropriate to grant NJDEP’s request.  As the Board specifically stated in the 2011 Decision, slip op. at 25-26 (citing 49 C.F.R. § 1105.10(d)), applicants need not file Environmental and/or Historic Reports describing the potential environmental impacts of their proposals if third-party contractors are used to assist the environmental staff in preparing the Board’s environmental documentation, which generally will be an EIS.  Thus, the 2011 Rules properly made clear that, even when a third-party contractor is used and Environmental and/or Historic Reports are not required from the applicant, the Board can still prepare an EIS.

 

NJDEP also argues that the clause in § 1155.21(c) stating “if an Environmental and/or Historic Report is required” conflicts with 49 C.F.R. § 1155.20(c).  The latter section states that “[a]pplicant must also submit an Environmental and/or Historic Report containing the information described at 49 C.F.R. §§ 1155.[24](b),[14] 1105.7, and 1105.8, to the extent applicable, at least 45 days prior to filing an application.”[15]  Although § 1155.20(c) does not include the language “if an Environmental and/or Historic Report is required,” it does specifically acknowledge later in that section that the “reporting requirements that would otherwise apply are waived . . . if the applicant or the Board hires a third-party consultant.”  Thus, there is no conflict between the two sections.  Nevertheless, for clarity, we will add a reference in § 1155.21(c) to § 1155.20(c).

 

C.  Interpretation of 49 U.S.C. § 10910

 

In the 2011 Decision, the Board added a procedural requirement that applicants and interested parties state whether the law affecting siting from which exemption is sought is an environmental, public health, or public safety standard that falls under the traditional police powers of the state, and if not, to explain why not.  2011 Decision, slip op. at 5; 49 C.F.R. § 1155.21(a)(7).  The Board reasoned that this information was necessary because of 49 U.S.C. § 10910 and the Board’s standard for review in revised 49 C.F.R. § 1155.26(b)(6),[16] and stated that, if a law affecting siting is covered by 49 U.S.C. § 10910, the Board will not issue a land-use-exemption permit unless the applicant has shown that compliance with that law meets the unreasonable burden or discrimination test.  2011 Decision, slip op. at 5 

 

The procedural requirement in § 1155.21(a)(7), and the Board’s substantive standard of review found at § 1155.26(b)(6), were based on the Board’s interpretation of § 10910, which provides that “[n]othing in section 10908 or 10909 is intended to affect the traditional police powers of the State to require a rail carrier to comply with State and local environmental, public health, and public safety standards that are not unreasonably burdensome and do not discriminate against rail carriers.”  When the 2009 Rules and 2011 Rules were issued, the Board read § 10910 as confirming judicial and Board precedent establishing that, notwithstanding the express federal preemption in 49 U.S.C. § 10501(b), state and local bodies nonetheless retain police powers to protect the public health and safety, so long as the state and local regulations do not serve to regulate railroad operations or unreasonably interfere with interstate commerce.  E.g., N.Y. Susquehanna, 500 F.3d at 252-55; Green Mountain, 404 F.3d at 643.  Consistent with this precedent, the Board, notwithstanding the separate express preemption provisions of § 10909, interpreted the CRA as preserving the state’s historic police powers to protect public health and safety where the law in question does not unreasonably burden interstate commerce or discriminate against rail transportation.

 

AAR, however, argues that the Board misinterpreted 49 U.S.C. § 10910 and that the Board can issue a land-use-exemption permit under § 10909 even if the law affecting siting falls under the state’s traditional police powers and the requirement does not unreasonably burden interstate commerce or discriminate against rail carriers.[17]  AAR points to the balancing of interests contemplated by § 10909(c) and (d), which, it claims, suggests that no single factor, such as the absence of an undue burden on interstate commerce, requires denial of a land-use-exemption permit.  It further argues that § 10909(f) provides the Board with express authority to preempt “all” state laws affecting siting of a solid waste rail transfer facility, including those that might otherwise fall under the traditional police powers of the state.  Arguing that the specific provisions of § 10909 dictate the proper interpretation of § 10910, AAR believes that § 10910 should be read to state that “[Other than with respect to state laws and requirements affecting siting, nothing in section 10908 or 10909 is intended to affect the traditional police powers of the State to require a rail carrier to comply with State and local environmental, public health, and public safety standards that are not unreasonably burdensome and do not discriminate against rail carriers.”[18]

 

We find that both AAR’s interpretation of § 10910 and the one originally adopted by the Board are plausible readings of the statute.  The statute is ambiguous, and the Board has struggled to interpret a number of its provisions, including § 10910.  At this juncture, however, we need not resolve the statutory ambiguity by definitively choosing one interpretation of § 10910 over the other.  We do not need to interpret § 10910 definitively in order to effectively carry out the intent of Congress in the CRA.  As AAR acknowledges, the Board has the discretion not to preempt a law affecting siting.[19]  Therefore, the difficult question regarding the preemptive effect of § 10910 would only arise in the event that an applicant for a land-use-exemption permit were to make a persuasive case that the Board should preempt a law affecting siting promulgated under the state’s traditional police powers that does not impose an unreasonable burden on interstate commerce and was not being used to discriminate against a rail carrier.  We cannot predict whether this scenario will come before the Board.  Should the situation described above arise in the future, the Board will, as appropriate, examine the meaning of § 10910 in the context of that specific factual dispute and the particular state law in question.  Accordingly, we will remove interim rule § 1155.26(b)(6) from our final rules.</p>]