[Federal Register Volume 62, Number 141 (Wednesday, July 23, 1997)]
[Notices]
[Pages 39593-39595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19377]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 33388 (Sub-No. 2)]
CSX Transportation, Inc.; Construction and Operation Exemption;
Connection Track at Willow Creek, IN
AGENCY: Surface Transportation Board (Board).
ACTION: Notice of exemption; request for comments.
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SUMMARY: On June 23, 1997, CSX Transportation, Inc. (CSXT) and
Consolidated Rail Corporation (CRC), pursuant to 49 U.S.C. 10502, filed
a petition for exemption from the prior approval requirements of 49
U.S.C. 10901 to construct and operate a connection track at Willow
Creek, IN.1 The Board seeks comments from interested persons
respecting the exemption criteria and any other non-environmental
concerns 2 involved in our approval of the construction and
operation of CSXT's and CRC's Willow Creek construction project sought
in STB Finance Docket No. 33388 (Sub-No. 2).
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\1\ This proceeding is related to STB Finance Docket No. 33388,
CSX Corporation and CSX Transportation, Inc., Norfolk Southern
Corporation and Norfolk Southern Railway Company--Control and
Operating Leases/Agreements--Conrail Inc. and Consolidated Rail
Corporation (CSX/NS/CR). In CSX/NS/CR, Decision No. 9, served June
12, 1997, we granted a petition for waiver that would allow CSXT and
CRC to seek approval for construction of four construction projects,
including this proposed construction at Willow Creek, following the
completion of our environmental review of the construction projects,
and our issuance of further decisions exempting or approving the
proposals, but prior to our approval of the primary application.
\2\ The handling of environmental issues will be discussed
below.
DATES: Written comments must be filed with the Board by August 22,
1997. Replies may be filed by CSX and CRC on or before September 11,
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1997.
ADDRESSES: An original and 25 copies of all documents must refer to STB
Finance Docket No. 33388 (Sub-No. 2) and must be sent to the Office of
the Secretary, Case Control Unit, ATTN: STB Finance Docket No. 33388
(Sub-No. 2), Surface Transportation Board, 1925 K Street, N.W.,
Washington, DC 20423-00013 In addition, one copy of all
documents in this proceeding must be sent to Administrative Law Judge
Jacob Leventhal, Federal Energy Regulatory Commission, 888 First
Street, N.E., Suite 11F, Washington, DC 20426 [(202) 219-2538; FAX:
(202) 219-3289] and to petitioners' representatives: Charles M.
Rosenberger, 500 Water Street--J150, Jacksonville, FL 32202; and John
J. Paylor, 2001 Market Street--16A, Philadelphia, PA 19101. Parties to
STB Finance Docket No. 33388 will not be automatically placed on the
service list for this proceeding.
\3\ In addition to submitting an original and 25 copies of all
documents filed with the Board, the parties are encouraged to submit
all pleadings and attachments as computer data contained on a 3.5-
inch floppy diskette formatted for WordPerfect 7.0 (or formatted so
that it can be converted into WordPerfect 7.0) and clearly labeled
with the identification acronym and number of the pleading contained
on the diskette. See 49 CFR 1180.4(a)(2). The computer data
contained on the computer diskettes submitted to the Board will be
subject to the protective order granted in Decision No. 1, served
April 16, 1997 (as modified in Decision No. 4, served May 2, 1997),
and is for the exclusive use of Board employees reviewing
substantive and/or procedural matters in this proceeding. The
flexibility provided by such computer data will facilitate timely
review by the Board and its staff.
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FOR FURTHER INFORMATION CONTACT: Julia M. Farr, (202) 565-1613. [TDD
for the hearing impaired: (202) 565-1695.]
SUPPLEMENTARY INFORMATION: On June 23, 1997, CSX Corporation (CSXC),
CSXT, Norfolk Southern Corporation (NSC), Norfolk Southern Railway
Company (NSR), Conrail Inc. (CRR), and CRC 4 filed their
primary application in the CSX/NS/CR proceeding seeking our
authorization for: (a) The acquisition by CSX and NS of control of
Conrail; and
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(b) division of Conrail's assets by and between CSX and NS. In Decision
No. 9 in that proceeding, we granted the requests by applicants, with
respect to four CSX construction projects and three NS construction
projects, for waivers of our otherwise applicable ``everything goes
together'' rule. 5 The waivers would allow CSX and NS to
begin the physical construction following the completion of our
environmental review of the construction projects, and our issuance of
further decisions exempting or approving the proposals, but prior to
our approval of the primary application. This petition for exemption
for the construction at Willow Creek, IN, concerns one of the seven
construction projects. By this notice, we are inviting comments on
whether the proposed transaction meets the applicable exemption
criteria and on any other non-environmental concerns regarding the
construction and operation of this particular project.
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\4\ CSXC and CSXT are referred to collectively as CSX. NSC and
NSR are referred to collectively as NS. CRR and CRC are referred to
collectively as Conrail. CSX, NS, and Conrail are referred to
collectively as applicants.
\5\ See 49 CFR 1180.4(c)(2)(vi).
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Pursuant to 49 U.S.C. 10502, CSXT and CRC have filed a petition for
exemption from the prior approval provisions of 49 U.S.C. 10901 to
construct and operate a connection track in Willow Creek, IN.
6 CSXT and CRC cross each other at Willow Creek. CSXT and
CRC propose to construct a connection track in the southeast quadrant
between CSXT's main line and CRC's main line. The connection will
extend approximately 2,800 feet between approximately milepost BI-236.5
on CSXT's main line between Garrett, IN, and Chicago, IL, and
approximately milepost 248.8 7 on CRC's main line between
Porter and Gibson Yard, IN, near Chicago. CSXT anticipates that it must
acquire approximately 0.2 acres of right-of-way to construct this
connection. As an exhibit to its petition, CSXT attached a map showing
the proposed connection at Willow Creek. 8
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\6\ CSXT filed a petition for exemption to construct and operate
a connection track in Willow Creek, IN, as a related filing in
Volume 5 of the primary application filed on June 23, 1997, in the
CSX/NS/CR proceeding. See CSX/NS-22 (Volume 5) at 104. CSXT and CRC
concurrently filed a slightly modified version of the petition for
exemption for construction of a connection track in Willow Creek
(CSX-6). We will consider both filings together here. As we stated
in CSX/NS/CR, Decision No. 9, at 6-7:
* * * in reviewing these projects separately, we will consider
the regulatory and environmental aspects of these proposed
constructions and applicants' proposed operations over these lines
together in the context of whether to approve each individual
physical construction project. The operational implications of the
merger as a whole, including operations over * * * the seven
construction projects, will be examined in the context of the
[Environmental Impact Statement] EIS that we are preparing for the
overall merger. * * * No rail operations can begin over these seven
segments until completion of the EIS process and issuance of a
further decision.
\7\ CSXT should reconsider the MP 248.8 designation, see CSX/NS-
22, at 106 (line 1); our review of CRC's timetable for its Porter
Branch suggests that the correct designation may be MP 246.8.
\8\ The parties indicate that they do not propose to operate
over the connection at this time, and acknowledge that operation
over this connection is related to, and contingent upon, the
proposed control of Conrail by CSX and NS, approval of which is
being sought in STB Finance Docket No. 33388.
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Under 49 U.S.C. 10901, a railroad may: (1) Construct an extension
to any of its railroad lines; (2) construct an additional railroad
line; or (3) provide transportation over an extended or additional
railroad line, only if the Board issues a certificate authorizing such
activity. However, under 49 U.S.C. 10502, the Board shall exempt a rail
transaction from regulation when it finds that: (1) Application of the
pertinent statutory provisions is not necessary to carry out the rail
transportation policy of 49 U.S.C. 10101; and (2) either the
transaction is of limited scope, or regulation is not needed to protect
shippers from the abuse of market power.
CSXT and CRC contend that exemption of its proposed construction
and operation at Willow Creek meets all of the elements of the rail
transportation policy. Petitioners maintain that, by minimizing the
regulatory expense and time inherent in a full application under the
provisions of section 10901, exemption will expedite regulatory
decisions and reduce regulatory barriers to entry into the industry.
They state that exemption will also foster efficient management and
promote a safe and efficient rail system. They also indicate that, if
the Board approves the primary application, one of CSXT's most
important service lanes will be its Northeastern Gateway route
extending from Chicago to Albany, NY, with branches eastward to Boston
and southward to Newark, NJ. This service lane will combine CSXT's
current main line route from Chicago to Greenwich, OH, and CRC's line
between Greenwich and Albany. The lines comprising this service lane
currently contain some of the most heavily traveled track on the
proposed CSXT combined system. CSXT anticipates that traffic on this
corridor will be as high as 50 trains per day within the next 3 years.
CSXT and CRC state that the proposed connection at Willow Creek
will facilitate the substantial traffic volume CSXT expects to move via
the Northeastern Gateway route to and from Chicago. Petitioners
indicate that the proposed connection at Willow Creek will provide a
direct link between CRC and CSXT tracks and the parallel line of
Indiana Harbor Belt Railroad (IHB) at Willow Creek.9 The
connection will allow the CRC and CSXT lines to be used interchangeably
as traffic conditions warrant. Petitioners maintain that the option to
switch to IHB at Willow Creek will provide a third main track into
Chicago in the 20-mile segment between Porter and the Chicago Terminal
at Hammond, IN. CSXT expects that an average of 11 trains per day will
operate over this connection.
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\9\ Petitioners may want to reconsider this assertion; our
review of CRC's timetable for its Porter Branch suggests that the
link with IHB may be at Ivanhoe, not at Willow Creek.
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Petitioners state that the exemption will promote effective
competition among rail carriers and with other modes, and meet the
needs of the shipping public. According to petitioners, the creation of
two competitive rail routes between the Northeast and Chicago is one of
the most important public benefits of the proposed division of
Conrail's assets. CSXT states that, by improving its operation in the
Chicago area, the connection at Willow Creek will assist CSXT in its
competition with NSR and other modes of transportation.
The environmental report covering the proposed construction and
operation of the connection track at Willow Creek is contained in the
Environmental Report filed with the Board in STB Finance Docket No.
33388. In addition, as we required in CSX/NS/CR, Decision No. 9, CSX
must submit, no later than September 5, 1997 (Day F+75), a preliminary
draft environmental assessment (PDEA) for each individual construction
project covered by our waiver decision. Each PDEA must comply with all
of the requirements for environmental reports contained in our
environmental rules at 49 CFR 1105.7. Also, the PDEA must be based on
consultations with our Section of Environmental Analysis (SEA) and the
federal, state, and local agencies set forth in 49 CFR 1105.7(b), as
well as other appropriate parties. If a PDEA is insufficient, we may
require additional environmental information or reject the document.
See CSX/NS/CR, Decision No. 9, at 8.
As part of the environmental review process, SEA will independently
verify the information contained in each PDEA, conduct further
independent analysis, as necessary, and develop appropriate
environmental mitigation measures. For each project, SEA plans to
prepare an EA, which will be served
[[Page 39595]]
on the public for review and comment. The public will have 20 days to
comment on the EA, including the proposed environmental mitigation
measures. After the close of the public comment period, SEA will
prepare Post Environmental Assessments (Post EAs) containing SEA's
final recommendations, including appropriate environmental mitigation.
Therefore, in deciding whether to grant petitioners' exemption request,
we will consider the entire environmental record, including all public
comments, the EA, and the Post EA. Id. at 8.
Should we determine that the Willow Creek construction project
could potentially cause, or contribute to, significant environmental
impacts, then the project will be incorporated into the EIS for the
proposed control transaction in STB Finance Docket No. 33388. Id. at 8.
As we have previously emphasized, our consideration of the seven
construction projects does not, and will not, in any way, constitute
approval of, or even indicate any consideration on our part respecting
approval of, the primary application in STB Finance Docket No. 33388.
See CSX/NS/CR, Decision No. 9, at 6; and Decision No. 5, served and
published in the Federal Register on May 13, 1997, 62 FR 26352, slip
op. at 3. If we grant any exemptions for these seven construction
projects, applicants will not be allowed to argue that, because we have
granted an exemption and applicants may have expended resources to
construct a connection track, we should approve the primary
application. Applicants have willingly assumed the risk that we may
deny the primary application, or approve it subject to conditions
unacceptable to applicants, or approve the primary application but deny
an applicant's request to operate over any or all of the seven
connections. Id.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. Comments on whether the proposed transaction meets the exemption
criteria of 49 U.S.C. 10502 and on any other non-environmental concerns
regarding the construction and operation of the connection track in
Willow Creek are due August 22, 1997.
2. Replies are due September 11, 1997.
3. This decision is effective on the date of service.
Decided: July 16, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 97-19377 Filed 7-22-97; 8:45 am]
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