[Federal Register Volume 63, Number 132 (Friday, July 10, 1998)]
[Pages 37442-37445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18455]

[[Page 37442]]



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

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

AGENCY: Surface Transportation Board.

ACTION: Notice of Intent to Prepare a Supplement to the Final 
Environmental Impact Statement and Request for Comments.


SUMMARY: On April 27, 1998, the Tongue River Railroad Company (TRRC) 
filed an application with the Surface Transportation Board (Board) 
under 49 U.S.C. 10901 and 49 CFR 1150.1-10 seeking authority to 
construct and operate a 17.3-mile line of railroad in Rosebud and Big 
Horn Counties, Montana, known as the ``Western Alignment.'' The line 
that is the subject of this application is an alternative routing for 
the portion of the 41-mile Ashland to Decker, Montana rail line that 
was approved by the Board on November 8, 1996 in Finance Docket No. 
30186 (Sub-No. 2), referred to as the ``Four Mile Creek Alternative.'' 

    \1\ Petitions for review of the November 8, 1996 decision were 
filed in the Ninth Circuit in Northern Plains Resource Council, Inc. 
Et. Al. v. STB, No. 97-70037 (filed Jan. 7, 1997) (NPRC). The court 
proceedings are being held in abeyance pending the conclusion of 
this proceeding.

    To evaluate and consider the potential environmental impacts that 
might result from the construction and operation of this new alignment, 
the Board's Section of Environmental Analysis (SEA) will prepare a 
Supplement to the Final Environmental Impact Statement in Finance 
Docket No. 30186 (Sub-No. 2) (Supplement). Comments are requested from 
interested parties regarding the scope of the environmental issues 
associated with the proposed construction and operation of the Western 
Alignment that should be addressed in the Supplement.

DATES: Written comments on the scope of potential environmental issues 
are due August 24, 1998 (45 days). TRRC may reply within 15 days 

ADDRESSES: Send an original and 10 copies of comments referring to STB 
Finance Docket No. 30186(Sub-No. 3) to: Surface Transportation Board, 
Office of the Secretary, Case Control Unit, 1925 K Street, NW, 
Washington, DC 20423-0001, Attention: Dana G. White, Section of 
Environmental Analysis.

FOR FURTHER INFORMATION CONTACT: Dana White, (202) 565-1552 (TDD for 
the hearing impaired: (202) 565-1695).



    In its original application filed on June 2, 1983 in Finance Docket 
No. 30186 and Finance Docket No. 30186 (Sub-No. 1), TRRC sought 
approval from the Interstate Commerce Commission (ICC, now the Surface 
Transportation Board or Board) for the construction and operation of 89 
miles of railroad between Miles City, MT and two termini located near 
Ashland, MT (Tongue River I). TRRC explained that the proposed rail 
line would serve future coal mines in the Ashland area, and connect 
with what is now the Burlington Northern and Santa Fe Railroad 
Company's main line at Miles City for shipment of the coal to eastern 
and western destinations. In a decision served May 9, 1986, the ICC 
approved the application subject to several conditions, including 
environmental mitigation conditions that were recommended in the 
environmental impact statement (EIS) prepared by the ICC's 
environmental staff, now the Section of Environmental Analysis (SEA).
    On June 28, 1991, TRRC filed an application in Finance Docket No. 
30186 (Sub-No. 2), seeking approval to construct and operate 41 miles 
of railroad running south from the approved Miles City to Ashland rail 
line to connect with existing rail lines serving the Decker, MT coal 
mines (Tongue River II). SEA also prepared an EIS for this proceeding 
and considered the potential environmental impacts associated with (1) 
TRRC's preferred route,2 (2) the Four Mile Creek 
Alternative,3 and (3) the no-build alternative. SEA's Draft 
EIS (DEIS) was served on July 17, 1992, and comments were requested. 
The DEIS preliminarily recommended the Four Mile Creek Alternative 
because it would avoid the environmentally sensitive Tongue River 
Canyon. Because of concerns raised during the commenting process, SEA 
issued a Supplement to the DEIS (SDEIS) on March 17, 1994. In the 
SDEIS, SEA preliminarily concluded that the Four Mile Creek Alternative 
would have more adverse environmental consequences than TRRC's 
preferred route, because it would involve more land disturbance from 
cut and fill, erosion, deforestation, loss of habitat, and require more 
fuel consumption and cause more air pollution during operations. After 
the commenting process for the SDEIS, and further analysis and 
evaluation, SEA issued a Final EIS (FEIS), on April 11, 1996. In it, 
SEA explained that it had concluded that the Four Mile Creek 
Alternative would be the environmentally preferable construction 
option. SEA developed appropriate mitigation conditions to address 
potential environmental impacts if either of the two construction 
alternatives were approved.

    \2\ TRRC's preferred route would have extended south from 
Ashland generally paralleling the Tongue River and passed just to 
the west of the Tongue River Reservoir before connecting with a line 
owned by the Spring Creek Coal Company, which provides access to the 
Burlington Northern and Santa Fe Railway Company rail lines. TRRC's 
preferred route would have included 5 bridges and a tunnel in the 
approximately 6-mile section of the Tongue River Canyon located 
between the Tongue River Dam and the confluence of Four Mile Creek 
and the Tongue River.
    \3\ The Four Mile Creek Alternative departs from TRRC's 
preferred route at the confluence of the Four Mile Creek and the 
Tongue River and heads in a westerly direction, climbing at a 2.31 
percent grade away from the Tongue River valley floor. The route 
winds south connecting with the Spring Creek spur at the same point 
as TRRC's preferred route. The Four Mile Creek Alternative thus 
avoids the Tongue River Canyon and Reservoir.

    In its decision served November 8, 1996, the Board approved the 
construction and operation of the Four Mile Creek Alternative, and 
imposed the mitigation measures recommended in the FEIS for that route. 
Additionally, the Board reopened Tongue River I for the limited purpose 
of requiring TRRC to complete construction of the entire line between 
Miles City and Decker within 3 years.
    By petition filed July 15, 1997, TRRC sought to reopen the Board's 
November 1996 decision approving the construction and operation of the 
Four Mile Creek Alternative and proposed that the Board consider a new 
route, the Western Alignment, for a 17-mile portion of the approved 
line instead of the Four Mile Creek Alternative. The Western Alignment 
would roughly parallel TRRC's preferred route, but would lie slightly 
to the west of that route and the Tongue River.4 TRRC

[[Page 37443]]

asserted that the Western Alignment, while still avoiding the 
environmentally sensitive Tongue River Canyon, would also eliminate the 
potential economic and operational problems TRRC claimed would make the 
approved Four Mile Creek Alternative economically infeasible. Further, 
TRRC stated that, compared to the Four Mile Creek Alternative, the 
Western Alignment would involve less land acquisition, affect fewer 
land owners, and, because of the more even grade, require less fuel 
consumption. However, based on additional information later filed by 
TRRC (see the discussion of TRRC's Environmental Report below), it 
appears that the Western Alignment could involve more earth-moving 
because of the rugged terrain, could cross more streams, could need 
more water during construction, and could potentially adversely affect 
big game movement, particularly pronghorn movement, during operations. 
In a decision served December 1, 1997, the Board denied TRRC's petition 
to reopen Tongue River II but stated that TRRC could file a new 
application for the Western Alignment.

    \4\ The Western Alignment would generally follow a route between 
TRRC's preferred alignment and the Four Mile Creek Alternative and 
would be located on uplands out of the Tongue River Canyon. Moving 
south along the approved route from Ashland, the Western Alignment 
would begin at a point approximately 9 miles downstream from the 
confluence of the Four Mile Creek and the Tongue River. It would 
then cross the Tongue River approximately 3,000 feet downstream of 
the existing county road river crossing. After crossing the river, 
the Western Alignment would parallel the existing Tongue River Road 
for 4 miles, then separate from the county road and climb away from 
the valley floor. At Four Mile Creek, the Western Alignment would 
cross the county road with a fifty-foot long bridge, and run 
approximately 0.07 miles west of the Hosford residence and ranch 
headquarters. From Four Mile Creek, the Western Alignment would 
continue to climb away from the Tongue River Valley, then proceed to 
connect with the existing Spring Creek rail spur. The Western 
Alignment would avoid the environmentally sensitive Tongue River 
Canyon and would incorporate at its steepest a grade of 0.93 percent 
for a length of 2.4 miles.

Current Application

    TRRC has now filed an application in Finance Docket 30186 (Sub-No. 
3) that requests authority under 49 U.S.C. 10901 to construct and 
operate the Western Alignment as the final 17 miles of the Ashland to 
Decker line (in lieu of the Four Mile Creek Alternative), to connect 
with existing rail lines serving the Decker area coal mines (Tongue 
River III). The remainder of the approved line from Ashland to Decker 
would remain unchanged. In its Environmental Report that TRRC submitted 
with its new application, TRRC focused on the immediate vicinity of the 
Western Alignment and that alignment's two construction alternatives, 
the Four Mile Creek Alternative and TRRC's preferred route. 
5 In the Environmental Report, TRRC compares what it 
believes to be the environmental impacts and costs of constructing and 
operating the Western Alignment with the impacts and costs associated 
with the relevant portions of the Four Mile Creek Alternative and 
TRRC's preferred route. TRRC did not readdress the entire corridor 
between Miles City and Decker because that corridor has already 
received extensive environmental review in the environmental impact 
statements prepared in Tongue River I and Tongue River II, both for the 
Miles City to Ashland portion and the Ashland to Decker portion of this 

    \5\  We note that TRRC's preferred route is not really a 
construction alternative at this point, since the Board approved the 
Four Mile Creek Alternative, and not TRRC's preferred route, in its 
November 1996 decision in Tongue River II.

    In preparing its Environmental Report, TRRC sought comments from a 
number of Federal and state agencies and included their responses in 
the report. Briefly, the U.S. Army Corps of Engineers (Corps) states 
that, since all Corps' permits have expired, it will be reviewing 
TRRC's proposal in its entirety. The Corps indicates that it believes 
that the project, though analyzed in segments over a number of years, 
is one continuous alignment. The Corps also suggests that environmental 
conditions along the 130-mile rail route may have changed since the 
earlier analyses were performed.
    The Montana Department of Natural Resources and Conservation 
expresses concern about the direction and flow of possible flood waters 
and floodplain obstruction, water rights for dust control, blasting in 
the vicinity of the Tongue River Dam, encroachments on county roads, 
interference with dam rehabilitation, protection of historic resources, 
and disturbance of survey monuments. The Montana Department of Fish, 
Wildlife & Parks (MT FWP) acknowledges that the Western Alignment would 
avoid operating costs and operational concerns associated with the Four 
Mile Creek Alternative, but expresses concerns about the possible 
impacts from the cut and fill requirements associated with the 
construction of the Western Alignment and impacts to the nearby Tongue 
River Reservoir state park. MT FWP also describes two issues that it 
believes are unresolved from SEA's earlier environmental analysis: (1) 
the preservation of the integrity of the fish hatchery at Miles City; 
and (2) the status of the Multi-agency/Railroad Task Force set up in 
Tongue River II. The Montana Department of Transportation (MT DOT), in 
addition to expressing concerns about highway safety, requests re-
negotiation of a Memorandum of Understanding designed to protect state 
highways. MT DOT also requests additional information about design 
plans for the I-94 grade crossing at Miles City. The Montana Natural 
Heritage Program has provided information about 5 species of concern 
that may be present in the Western Alignment area.
    No responses were included in TRRC's Environmental Report from 
other agencies that TRRC contacted, including the U.S. Environmental 
Protection Agency, the U.S. Fish and Wildlife Service, the National 
Geodetic Survey, the National Park Service, the Montana Department of 
Environmental Quality, and the Montana Department of Commerce.
    The Northern Plains Resource Council (NPRC), in a separate filing 
before the Board,6 has suggested that the Board should now 
require another environmental analysis of the entire Miles City to 
Decker corridor. NPRC disagrees with TRRC's view that the Board should 
rely on its previous environmental analysis and focus its environmental 
review on only the Western Alignment. Instead, NPRC suggests that there 
are significant new changed environmental circumstances along the 
entire route. For example, it points to the invalidation of the Montco 
mine permit and the designation of the Tongue River as an impaired 
waterbody under the Clean Water Act. In addition, NPRC alleges that 
TRRC has significantly altered the alignments that were analyzed in 
Tongue River I and Tongue River II as it begins to exercise the 
authority previously granted in those proceedings.7 If that 
were shown to be the case, it could be that the environmental analysis 
of some of the previously approved line would no longer be adequate.

    \6\ See Northern Plains Resource Council, Inc.'s Reply in 
Opposition to Petition to Establish Procedural Schedule, filed March 
23, 1998.
    \7\ This point also has been brought to SEA's attention 
informally by various Montana state agencies.

    Also, in separate filings,8 Great Northern Properties 
Limited Partnership suggests that the increased coal traffic projected 
for the Western Alignment could affect the entire 130-mile route.

    \8\ See Great Northern Properties Limited Partnership's Replies 
filed February 17, 1998, and May 20, 1998, and Motion to Compel 
filed April 6, 1998.

Environmental Review Process

    The Council on Environmental Quality's (CEQ) rules implementing the 
National Environmental Policy Act (NEPA) advise Federal agencies to 
prepare supplements to an EIS where, as here, new information that is 
relevant to environmental concerns is presented after a Final EIS has 
been prepared. 9

[[Page 37444]]

See Marsh v. Oregon Natural Resources Council, 490 U.S. 360 
(1989)(Marsh). Therefore, based on the CEQ rules, the Board's 
environmental regulations at 49 CFR 1105.10(a)(5), and SEA's analysis 
of all the information on the Western Alignment SEA has received to 
date, SEA has determined that a Supplement to the EIS in Finance Docket 
30186 (Sub-No. 2) (Supplement) is the appropriate means of reviewing 
TRRC's application for the Western Alignment in Tongue River III. 
Specifically, SEA will prepare a draft Supplement including preliminary 
mitigation recommendations that will be available for a 45-day comment 
period. Based on comments to the draft Supplement, and any further 
analysis, SEA will prepare a final Supplement, which will include 
appropriate environmental mitigation recommendations. The Board will 
consider the draft and final Supplements, any comments, and other 
available environmental information in rendering its decision on 
whether to grant TRRC's new application. In its decision, the Board 
will consider both economic and competitive transportation issues and 
will impose any environmental conditions it deems appropriate.

    \9\  The CEQ regulations at 40 CFR 1502.9(c) state that 
    (1) Shall prepare supplements to either draft or final 
environmental impact statements if:
    (i) The agency makes substantial changes in the proposed action 
that are relevant to environmental concerns; or
    (ii) There are significant new circumstances or information 
relevant to environmental concerns and bearing on the proposed 
action or its impacts.
    (2) May also prepare supplements when the agency determines that 
the purposes of the Act will be furthered by doing so.
    (3) Shall adopt procedures for introducing a supplement into its 
formal administrative record, if such a record exists.
    (4) Shall prepare, circulate, and file a supplement to a 
statement in the same fashion (exclusive of scoping) as a draft and 
final statement unless alternative procedures are approved by the 

Request for Comments About the Scope of the Supplement

    Although CEQ's rules implementing NEPA do not require public 
scoping for the preparation of Supplements, SEA believes that it is 
appropriate in this case to request comments regarding the 
environmental scope of, and potential environmental concerns and issues 
to be addressed in, the Supplement. 10 Typically, SEA's 
environmental analysis includes potential impacts to safety, land use, 
water quality, endangered species, wildlife habitat, cultural 
resources, air, and noise that would result from the proposed 
transaction. See 49 CFR 1105(7)(e). At a minimum, SEA intends in its 
Supplement to analyze these potential environmental impacts associated 
with the construction and operation of the Western Alignment and to 
recommend appropriate mitigation to reduce or eliminate potentially 
adverse impacts in these areas. We invite interested parties to address 
any other potential impacts or areas of concern that are directly 
related to the proposed construction and operation in Tongue River III, 
and, therefore, should also be considered in the Supplement.

    \10\ As noted, this Notice provides a 45-day comment period. 
TRRC may reply within 15 days thereafter.

    In addition, we invite comments about TRRC's suggestion that SEA's 
environmental analysis should be limited to the Western Alignment, 
TRRC's proposed construction alternatives for the Western Alignment, 
and the no-build alternative, and that there is no reason to revisit 
any of the earlier environmental analysis in Tongue River I and Tongue 
River II. As discussed earlier, some agencies and other interested 
parties have suggested that our approach should be broader. Moreover, 
the question of when circumstances have changed so much as to make some 
or all of a prior analysis stale is a difficult one. Therefore, we 
request comments on whether the Supplement should focus only on the 
environmental impacts associated with the Western Alignment and its 
alternatives, or whether the Supplement should encompass environmental 
concerns beyond the immediate geographic area of the Western Alignment 
(i.e, take at least a limited look at the rest of the line recently 
approved in Tongue River II, or perhaps even revise or update the 
environmental analysis in Tongue River I if we are shown that the 
environmental analysis has become outdated and is no longer 

    \11\ The Western Alignment plainly is directly related to Tongue 
River II because it is an alternative route for a part of that line. 
In addition, while no stay of Tongue River II was sought from the 
Board or in any court, petitions for judicial review are pending in 
the Ninth Circuit in NPRC. It is more difficult to justify 
revisiting Tongue River I, which has long been administratively 
final and is not pending judicial review in any court. On the other 
hand, as some agencies have contended, it can be argued that Tongue 
River I, II and III cannot be considered separately and are all part 
of the same line.

    The CEQ rules direct agencies to consider in any Supplement 
``significant new circumstances or information relevant to 
environmental concerns and bearing on the action or its impacts.'' 40 
CFR 1502.9(c). At the same time, it is well settled that an agency need 
not supplement an environmental impact statement every time new 
information comes to light after the environmental impact statement is 
finalized. Marsh, 490 U.S. at 373. Thus, the passage of time, in and of 
itself, is not necessarily a reason to repeat or redo environmental 
analysis. Id. Moreover, the environmental analysis in Tongue River I 
and Tongue River II was thorough and comprehensive. Therefore, we 
intend to use and rely on the data and analysis contained in our 
previous environmental documents for the Miles City to Ashland line and 
the Ashland to Decker line unless it is shown that, as a result of 
significant new circumstances, what was done before is no longer 
adequate. For example, it may be that certain portions, if not all, of 
the previous environmental documentation should be updated or revised 
to reflect significant new information (i.e, substantial alignment 
changes) that has made our former analysis incomplete, out-of-date or 
    Therefore, SEA has decided to seek comments on whether, to what 
extent, and in what environmental areas, our prior environmental 
documents may have become out-of-date. Specifically, we invite all 
interested parties to provide us with information, including specific 
examples, on whether any environmental conditions have changed 
substantially since we completed our environmental analysis in Tongue 
River I and Tongue River II. For example, have any substantial changes 
occurred in land use, topography, wetlands or water resources, 
endangered species, or cultural resources? If significant changes have 
occurred that could affect the adequacy of the conclusions in our 
previous environmental documents, such as NPRC's claim that TRRC may 
now have altered significantly the proposed alignment from what was 
analyzed in the prior environmental impact statements, we should be 
informed of these changes now so that we can consider such evidence in 
determining what the scope of the Supplement should be.
    All comments should provide specific evidence to support the claims 
that are made. We want to know with specificity why commenters believe 
that environmental circumstances have changed significantly, possibly 
affecting our previous analysis and conclusions and, therefore, 
warranting further review in the Supplement.
    SEA will also consult with affected Federal, state and local 
agencies regarding the appropriate scope of the Supplement. Based on 
its consideration of any comments to this Notice, and its evaluation 
and review of all available information, SEA will then announce what 
the scope of the Supplement will be.
    As directed above, please submit comments by August 24, 1998 (45 
days). TRRC may reply within 15 days thereafter.

[[Page 37445]]

    By the Board, Elaine K. Kaiser, Chief, Section of Environmental 
Vernon A. Williams,
[FR Doc. 98-18455 Filed 7-9-98; 8:45 am]