[Federal Register Volume 71, Number 160 (Friday, August 18, 2006)]
[Notices]
[Pages 47862-47863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13531]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Adoption of Environmental Impact Statement, Participation in a 
Section 106 Programmatic Agreement, and Notice of Availability of 
Section 4(f)/303 Statement

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Adoption and Recirculation of Final Environmental Impact 
Statement and Final Supplemental Environmental Impact Statement; 
Participation as a Concurring Party to a Section 106 Programmatic 
Agreement; and Notice of Availability of a Draft Section 4(f)/303 
Statement.

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SUMMARY: FRA is issuing this notice to advise the public and interested 
agencies that FRA has decided to adopt the Environmental Impact 
Statement (EIS) and Supplemental Environmental Impact Statement (SEIS) 
issued by the Surface Transportation Board (STB) for construction and 
operation of a new rail line and related improvements by the Dakota, 
Minnesota and Eastern Railroad Corporation (DM&E). Under applicable 
regulations, FRA is allowed to adopt and recirculate the STB's Final 
EIS and Final SEIS as its own, since FRA's proposed action is 
substantially the same as the action covered by the STB's EISs. The FRA 
further announces the availability of a draft Section 4(f)/303 
Statement prepared for the Project by the FRA pursuant to Section 4(f) 
of the Department of Transportation Act (49 U.S.C. Sec.  303(c)). The 
draft Section 4(f)/303 Statement and STB's EISs are available and 
comments may be submitted as indicated below.
    This project, known as the Powder River Basin Expansion Project 
(Project), would involve construction of approximately 280 miles of new 
rail line to reach the coal mines of Wyoming's Powder River Basin and 
reconstruction of another approximately 600 miles of DM&E's existing 
rail line that would allow operation of unit coal trains along the 
reconstructed route to and from the new line. The Project takes place 
in the States of Minnesota, South Dakota and Wyoming. The DM&E has 
applied to the FRA for a $2.3 billion loan under the Railroad 
Rehabilitation and Improvement Financing (RRIF) program to finance the 
Project.

DATES: Submit comments on the Final EIS, Final SEIS, or the draft 
Section 4(f)/303 Statement no later than October 10, 2006 to David 
Valenstein, Environmental Program Manager, at the address listed below.

ADDRESSES: The EIS documents and the draft Section 4(f)/303 Statement 
can be inspected at the FRA office at the address listed below. The 
draft Section 4(f)/303 Statement may be obtained from the FRA Web site 
at http://www.fra.dot.gov or by contacting the FRA. Additionally, the 
STB's Draft EIS, Final EIS, Draft SEIS and Final SEIS are available in 
electronic format on the STB Web site at http://www.stb.dot.gov under 
Environmental Matters, Key Cases, DM&E Links and one or more of the 
EISs may be viewed in 70 libraries in the Project area as listed on 
FRA's Web site.

FOR FURTHER INFORMATION CONTACT: David Valenstein, Environmental 
Program Manager; 1120 Vermont Avenue, NW.; Mail Stop 20; Washington, DC 
20590; Phone (202) 493-6368.

SUPPLEMENTARY INFORMATION: The DM&E filed an application in 1998 with 
the STB for authority to construct and

[[Page 47863]]

operate the Project, which would involve construction of approximately 
280 miles of new rail line to reach the coal mines of Wyoming's Powder 
River Basin. See STB Finance Docket No. 33407. Reconstruction of 
another approximately 600 miles of DM&E's existing rail lines would be 
required in conjunction with the new line construction to allow 
operation of unit coal trains along the reconstructed route to and from 
the new line. STB's National Environmental Policy Act (NEPA) review 
considered the impacts of both the new line construction and existing 
line reconstruction. The STB's Section of Environmental Analysis (SEA) 
prepared a Draft Environmental Impact Statement (DEIS) for the Project 
on September 27, 2000, provided a comment period from October 6, 2000 
to March 6, 2001, and prepared a Final EIS on November 19, 2001. After 
litigation challenging the adequacy of the EIS, the court remanded the 
case back to the STB. Mid States Coalition for Progress v. Surface 
Transportation Board, 345 F.3d 520 (8th Cir. 2003). The STB 
subsequently issued a Draft SEIS on April 15, 2005, and a Final SEIS on 
December 30, 2005. On February 15, 2006, the STB issued a decision 
approving the construction and operation of the proposed project, 
subject to various environmental conditions and oversight. The STB 
issued the above-mentioned EISs with assistance from the following five 
cooperating agencies which had jurisdiction over various aspects of the 
Project: The U.S. Department of Agriculture, Forest Service; the U.S. 
Department of Interior, Bureau of Land Management; the U.S. Army Corps 
of Engineers; the U.S. Department of Interior, Bureau of Reclamation; 
and the U.S. Coast Guard. The FRA was not a cooperating agency because 
it had no involvement or jurisdiction over any aspect of the Project at 
that time.
    Amendments to the RRIF program adopted in section 9003 of the Safe 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (Pub. L. 109-59, 119 Stat 1144) expanded the scope of the 
RRIF program and made other changes to the underlying statute and 
implementing regulations which, when taken together, made possible the 
DM&E RRIF application to finance the Project. The DM&E originally 
submitted a preliminary application for RRIF financing in late 2005 
that contained several components, including the construction of a new 
rail line into the Powder River Basin (PRB), and the rehabilitation of 
several segments of its existing system. However, that application was 
subsequently replaced by two separate applications, one in February, 
2006 for the PRB construction and another in March, 2006 for some 
rehabilitation work necessary for the west end of the DM&E rail system 
independent of the PRB project. Provision of a loan to the DM&E under 
the RRIF program requires FRA compliance with the requirements of the 
NEPA, Section 4(f) of the Department of Transportation Act, 49 U.S.C. 
303(c), and FRA's Environmental Procedures [64 FR 28545, 28522 at Sec.  
12 (May 6, 1999)], see also 49 CFR 260.35.
    FRA has conducted an independent review of the EIS and SEIS for the 
purpose of determining whether FRA could adopt these documents pursuant 
to 40 CFR 1506.3. FRA's review concluded that the action encompassed by 
the DM&E RRIF application is substantially the same as the action 
documented in the EIS and SEIS, that the EIS and SEIS adequately assess 
the environmental impacts associated with the Project and meet the 
standards of the Council on Environmental Quality (CEQ) NEPA Regulation 
(40 CFR parts 1500-1508), and that the EIS and SEIS can be adopted by 
the FRA. CEQ's regulations implementing NEPA strongly encourage 
agencies to reduce paperwork and duplication, 40 CFR 1500.4. One of the 
methods identified by CEQ to accomplish this goal is adopting the 
environmental documents prepared by other agencies in appropriate 
circumstances, 40 CFR 1500.4(n), 1500.5(h), and 1506.3. In instances 
where the actions covered by the original environmental impact 
statement and the proposed action are substantially the same, the 
agency adopting another agency's statement is not required to 
recirculate it except as a final statement, 40 CFR 1506.3(b).
    In accordance with the Environmental Protection Agency's (EPA) 
requirements regarding the filing of EISs, FRA has provided the EPA 
with a notice of adoption and five copies of the STB's Final EIS and 
Final SEIS. EPA will publish a notice of availability of the Final EIS 
and SEIS in the Federal Register consistent with its usual practices. 
Because of the multi-volume size of the FEIS and SEIS and its continued 
availability in libraries in the affected States and on the STB's Web 
site, FRA is not republishing the document on its own. This would be 
costly, defeat CEQ's goals of reducing paperwork and duplication of 
effort, and be of little or no additional value to other agencies or 
the public. FRA has mailed a notification of FRA's adoption and where 
the EISs are available to persons and parties of record who have 
participated in the most recent phase of STB's EIS process.
    Because the STB's EIS for the Project did not include an evaluation 
pursuant to Section 4(f) of the Department of Transportation Act (49 
U.S.C. Sec.  303(c)), the FRA, with assistance from an independent 
contractor, has prepared a separate draft Section 4(f)/303 Statement 
consistent with FRA procedures and posted it on FRA's Web site (http://www.fra.dot.gov). Comments on the draft section 4(f)/303 Statement may 
be forwarded to the FRA at the address listed above.
    In adopting the STB EIS and issuing a draft 4(f)/303 Statement, the 
FRA finds that FRA's undertaking under Section 106 of the National 
Historic Preservation Act is substantially the same as the undertaking 
addressed by the STB and consequently FRA seeks to join, as a 
concurring party, the March 2003 Programmatic Agreement (PA) agreed to 
pursuant to Section 106 for the Project and included in the Draft SEIS 
as Appendix D. The PA was developed and executed by the STB, the DM&E, 
the Advisory Council on Historic Preservation, State Historic 
Preservation Officers, and other invited signatories in the affected 
States to coordinate additional evaluation and consultation regarding 
historic and cultural resources. FRA agrees with the area of potential 
effects, the level of effort for identification of historic properties, 
and the procedures to be followed for treatment of affected historic 
properties outlined in the PA. By joining as a concurring party, the 
FRA would be better able to require the applicant to comply with the PA 
as a condition of the FRA loan and permit continued FRA involvement in 
future decisions regarding historic resources should the FRA decide to 
approve the loan.
    Accordingly, FRA has adopted the STB EIS and SEIS, is recirculating 
the Final EIS and Final SEIS, is seeking to join the PA, and has 
concluded that no supplement or additional environmental review beyond 
the Section 4(f)/303 Statement referenced herein is required to support 
the FRA's proposed action. FRA anticipates that a final Section 4(f)/
303 Statement and Record of Decision will be issued after October 10, 
2006.

    Issued in Washington, DC on August 10, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. E6-13531 Filed 8-17-06; 8:45 am]
BILLING CODE 4910-06-P