[Federal Register Volume 63, Number 88 (Thursday, May 7, 1998)]
[Notices]
[Pages 25266-25268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12165]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board
[STB Finance Docket No. 33407]


Dakota, Minnesota & Eastern Railroad Corporation Construction 
Into the Powder River Basin 1
---------------------------------------------------------------------------

    \1\ This case was formerly entitled Dakota, Minnesota & Eastern 
Railroad Corporation--Construction and Operation--in Campbell, 
Converse, Niobrara, and Weston Counties, WY, Custer, Fall River, 
Jackson, and Pennington Counties, SD, and Blue Earth, Nicollet, and 
Steele Counties, MN. We have shortened the title for the sake of 
simplicity.
---------------------------------------------------------------------------

AGENCY: Surface Transportation Board, DOT.

ACTION: Notice of issuance of procedural schedule.

-----------------------------------------------------------------------

SUMMARY: The Board has received public comments on the proposed 
procedural schedule for issuing a decision on the transportation merits 
of the application and applicant's reply to those comments, and the 
Board is issuing a final procedural schedule. This schedule provides 
for issuance of a decision within 180 days of the effective date of 
this decision that will address the transportation issues relating to 
this construction application and whether the proposal satisfies the 
criteria of 49 U.S.C. 10901. Any approval would be conditioned upon 
completion of the environmental review process and consideration of 
environmental issues, which would be considered in a final decision on 
whether to authorize the construction.

DATES: The effective date of this decision is May 7, 1998. Pleadings 
must be filed in accordance with the attached schedule. All filings, 
except notices of intent to participate, must be concurrently served on 
all parties of record and must be accompanied by a certificate of 
service.

ADDRESSES: Send an original and 10 copies of all pleadings referring to 
STB Finance Docket No. 33407 to: Surface Transportation Board, Office 
of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, 
DC 20423. To permit concurrent service of pleadings on all parties of 
record, a service list containing the names and addresses of all 
parties of record will be issued by the Board in a subsequent notice.


[[Page 25267]]


FOR FURTHER INFORMATION CONTACT: Joseph H . Dettmar, (202) 565-1600. 
[TDD for the hearing impaired: (202) 565-1695.]

SUPPLEMENTARY INFORMATION: By decision served March 11, 1998, as 
corrected, the Board published notice of a construction and operation 
application filed by the Dakota, Minnesota & Eastern Railroad 
Corporation (DM&E) 2 and requested comments on a procedural 
schedule based on one proposed by DM&E for consideration of the 
transportation issues regarding the application. 3 That 
decision also required DM&E to cause to be published notices: (1) 
Advising that comments would not be due until the Board establishes a 
procedural schedule; and (2) after a schedule has been adopted by the 
Board, setting forth the schedule, including the due date for comments 
on the merits of the proposed transaction.
---------------------------------------------------------------------------

    \2\ DM&E seeks authority to construct and operate 280.09 miles 
of new railroad line, which would extend DM&E's existing rail lines 
into the Powder River Basin coal fields in northeastern Wyoming, and 
DM&E also plans several related projects. Notice of the application 
was published in the Federal Register on March 13, 1998 (63 FR 
12576).
    \3\ DM&E's proposed schedule also would have covered the 
carrying out of the environmental review process. Our March 11, 1998 
decision found that it would be premature to establish any sort of 
environmental review schedule, but directed our Section of 
Environmental Analysis (SEA) to initiate the environmental review 
process. On March 27, 1998, SEA published a notice of intent to 
prepare an Environmental Impact Statement (EIS), scheduling agency 
and public scoping meetings between April 29 and June 30, 1998.
---------------------------------------------------------------------------

    We received over two hundred comments on the proposed procedural 
schedule. Comments were filed by landowners, environmental groups, 
shipper organizations, shippers and receivers (including electric 
utilities), railroads, government entities, and rail labor unions. We 
have reviewed all of these comments but, in light of their number, will 
not mention each comment individually here.
    For the most part, the parties opposing the proposed schedule state 
that the original 35-day comment period is insufficient. One group of 
similar letters 4 (over 50) asks that we allow comments 
throughout the EIS process. The other time period mentioned most 
frequently is an increase in the initial public comment period to 180 
days. There are also a few suggestions for comment periods of up to 400 
days.
---------------------------------------------------------------------------

    \4\ The second largest group of similar letters (over 30) does 
not specifically address the procedural schedule; rather, these 
letters argue against conditional approval.
---------------------------------------------------------------------------

    The rationale for extending the time period for submitting comments 
is, generally, that the proposal is extensive and that more time is 
needed to study it and to seek help in asserting the parties' positions 
in opposition. These parties argue that copies of the application are 
not readily available to many landowners, and that the application set 
out on the Internet is incomplete. 5 These parties also 
claim that DM&E has had years to prepare its arguments and that they 
deserve time to counter these arguments and fully understand the public 
convenience and necessity claims of DM&E. There are also numerous 
requests for local hearings, contentions that consideration of the 
transportation criteria in 49 U.S.C. 10901 prior to completion of the 
analysis of the potential environmental impacts is not appropriate, and 
assertions that there is no public need for another rail line to serve 
the Powder River Basin.
---------------------------------------------------------------------------

    \5\ DM&E placed a copy of the application on the Internet at 
``WWW.DMERAIL.COM.''
---------------------------------------------------------------------------

    There is one specific proposal for an alternative procedural 
schedule. It is offered by the 777 Ranch. 6 This proposal 
would significantly extend the due dates for the various pleadings 
7 and ultimately postpone the issuance of a decision on 
transportation issues by slightly more than 9 months, for a total of 
approximately 15 months until the decision on the transportation issues 
is made.
---------------------------------------------------------------------------

    \6\ The 777 Ranch and the Mid-States Coalition for Progress list 
the same PO box and phone number, and their pleadings are quite 
similar. The SMS Ranch Partnership also submitted essentially 
identical comments.
    \7\ The 777 Ranch would make these changes to the proposed 
schedule (where P signifies the date of this decision): comments due 
from P + 35 to P + 180; STB decision setting modified procedure/oral 
hearing from P + 70 to P + 215; opposing evidence and argument from 
P + 115 to P + 395; and STB decision from P + 180 to P + 460.
---------------------------------------------------------------------------

    Numerous parties support the 180 day schedule.8 These 
parties emphasize that this schedule is reasonable and provides 
adequate time for submitting evidence and for informed decision making 
by the Board.
---------------------------------------------------------------------------

    \8\ These parties also frequently mention their support for the 
construction project and request expedited consideration of the 
environmental issues.
---------------------------------------------------------------------------

    In support of the proposed schedule, DM&E argues that many of the 
opposing comments appear to be from parties ``implacably'' against the 
project who see delay as a desirable end in itself. DM&E also claims 
that many of the opposing comments are directed to environmental 
concerns, while others address the merits of the proposal rather than 
the amount of time needed to provide adequate opportunity for public 
participation and for development of a sufficient record on the 
transportation merits of the application. DM&E adds that it has 
attempted to ensure the broad availability of the application and that 
it went well beyond Board regulations in this regard.
    Turning to the specific requests for lengthening the proposed 
schedule, DM&E notes that the commenters apparently did not take into 
account that, after the initial 35-day comment period, there would be a 
further 80-day period in which to submit transportation evidence and 
argument in opposition. In addition, DM&E points out that, even before 
a specific schedule is adopted, interested parties will have already 
had nearly 2 months since the application was filed to begin 
preparation of their transportation comments.
    We have reviewed all the comments received on the proposed 
procedural schedule and are aware of the concerns parties have raised 
regarding the amount of time necessary to prepare their cases as well 
as the desire of DM&E to have an expedited schedule. Balancing these 
competing concerns, and with fairness to all parties in mind, we have 
decided to adopt the proposed 180-day procedural schedule for 
consideration of transportation issues. This schedule will ensure that 
all parties are accorded due process. It will allow for adequate public 
participation and the development of a sufficient record on which to 
consider the transportation implications of applicant's construction 
proposal under 49 U.S.C. 10901. As we explained in our previous 
decision, any approval granted would be conditioned upon consideration 
of the environmental impacts of the proposed construction. Thus, we 
will issue a subsequent decision after completion of the EIS process, 
and only at that point would we allow construction to begin, if 
appropriate, based on a consideration of the potential environmental 
impacts of the proposed transaction. The courts have found that it does 
not violate the environmental laws for an agency to conditionally 
approve an action before the completion of environmental review. City 
of Grapevine v. DOT, 17 F.3d 1502 (D.C. Cir. 1984). See generally 
Missouri Mining Inc. v. ICC, 33 F.3d 980 (8th Cir. 1994) (affirming 
construction authorization that had first been conditionally granted).
    Although numerous parties have requested that we extend the various 
time periods set forth in the proposed schedule, none of these requests 
shows any specific need for additional time in order to address 
transportation issues under the statutory standards of section 10901. 
We believe the proposed schedule, which allows almost 4 months (a total 
of 115 days) in addition

[[Page 25268]]

to the time already elapsed since the application was filed, affords 
ample opportunity to file evidence and argument in opposition to the 
application.
    In addition, we note that many of the pleadings we received in 
response to our request for comments on the procedural schedule for 
consideration of transportation issues instead raise concerns with 
environmental issues. As noted, we will separately address 
environmental issues in a subsequent decision after completion of the 
EIS process. Other comments are directed more to the transportation 
merits of the application than the procedural schedule.
    As mentioned, our previous decision required DM&E to cause to be 
published new notices setting forth the schedule we are adopting here 
and certifying to us that it has done so. We are reiterating that 
requirement here.
    In addition to setting forth the procedural schedule, the new 
notices must clearly set forth the filing requirements we established 
here, which we are modifying slightly from those originally 
contemplated. These filing requirements are: first, anyone who intends 
to file comments in this proceeding and to participate fully as a party 
of record (POR) must file with the Secretary of the Board an original 
and 10 copies of a notice of intent to participate in the proceeding by 
May 27, 1998. The Board will then issue a list of those persons who 
have given notice of their intent to participate.9All 
documents (including comments) filed under the procedural schedule must 
be served on each person identified on this service list as a POR and 
each person making a filing must certify to the Secretary of the Board 
that he or she has done so. Persons not participating as a POR may 
obtain copies of pleadings through the Board's copy contractor, DC News 
& Data, Inc., 1925 K Street, N.W., Suite 210, Washington, DC 20006. 
Telephone: (202) 289-4357. [Assistance for the hearing impaired is 
available through TDD Services (202) 565-1695.] Second, so that all 
PORs may have the benefit of receiving all comments, we are requiring 
that, in order to be considered, any previously submitted comments 
addressing the transportation merits of the proposed construction must 
be resubmitted and properly served on all PORs once we issue the 
service list. Previously submitted transportation comments will not be 
considered unless resubmitted and served. We recognize that this will 
create duplicate pleadings in some circumstances, but feel it is 
necessary to ensure complete dissemination of all comments. 
10
---------------------------------------------------------------------------

    \9\ The Office of the Secretary will start compiling the 
official service list in this proceeding after service of this 
decision adopting a procedural schedule. Persons named on any 
earlier service list will not automatically be placed on the 
official service list for this proceeding. Therefore, any person who 
wishes to be a POR must file a notice of intent to participate by 
May 27, 1998.
    \10\ We emphasize that interested persons that do not wish to 
participate formally in this phase of the proceeding addressing the 
transportation merits of the application need not become a POR to 
participate fully in the environmental phase of the proceeding. We 
note that cross service of comments is not ordinarily required in 
the environmental review process.
---------------------------------------------------------------------------

    Board decisions and notices are available on our website at 
``WWW.STB.DOT.GOV.''
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

    Decided: April 30, 1998.

    By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.

Procedural Schedule

    In the following schedule, the term ``P'' designates the date that 
the Board issues this procedural schedule and ``P + n'' means ``n'' 
days following that date.

P--Procedural schedule established by the Board.
P+7--Due date for publication by DM&E of newspaper notice announcing 
the procedural schedule.
P+20--Due date for notices of intent to participate as a party of 
record
P+35--Due date for written comments on transportation aspects of the 
Application.
P+40--Due date for DM&E's replies to written comments on transportation 
aspects of the Application.
P+70--Board decision ordering hearing under modified procedures.
P+115--Due date for evidence and argument in opposition to the 
transportation aspects of the Application.
P+135--Due date for DM&E's reply evidence and argument in support of 
the transportation aspects of the Application.
P+180 (or earlier)--Service of preliminary decision on whether the 
transportation criteria of section 10901 have been met.

[FR Doc. 98-12165 Filed 5-6-98; 8:45 am]
BILLING CODE 4915-00-P