[Federal Register Volume 74, Number 16 (Tuesday, January 27, 2009)]
[Rules and Regulations]
[Pages 4714-4726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1304]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1002, 1011, and 1155

[STB Ex Parte No. 684]


Solid Waste Rail Transfer Facilities

AGENCY: Surface Transportation Board.

ACTION: Interim Rules with Request for Comments.

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SUMMARY: The Clean Railroads Act of 2008 (Clean Railroads Act or CRA), 
enacted to remove from the jurisdiction of the Surface Transportation 
Board (Board or STB) the regulation of solid waste rail transfer 
facilities, except as provided for in that act. The Clean Railroads Act 
adds new sections to title 49 of the United States Code which limit the 
Board's authority with regard to solid waste rail transfer facilities 
to the issuance of land-use-exemption permits. Upon receiving a land-
use-exemption permit, a solid waste rail transfer facility need not 
comply with state laws, regulations, orders, and other requirements 
affecting the siting of the facility, as those state laws, regulations, 
orders and requirements would be preempted under these circumstances. 
The Clean Railroads Act also requires that the Board issue procedures 
governing the submission and review of applications for land-use-
exemption permits and related filings.

DATES: The interim rules are effective on January 27, 2009, and are 
applicable beginning January 14, 2009. Comments on the interim rules 
are due by February 23, 2009. Reply comments are due by March 23, 2009.

ADDRESSES: Comments may be submitted either via the Board's e-filing 
format or in the traditional paper format. Any person using e-filing 
should attach a document and otherwise comply with the instructions at 
the E-FILING link on the Board's Web site, at http://www.stb.dot.gov. 
Any person

[[Page 4715]]

submitting a filing in the traditional paper format should send an 
original and 10 copies to: Surface Transportation Board, Attn: STB Ex 
Parte No. 684, 395 E Street, SW., Washington, DC 20423-0001.
    Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted 
to the Board's Web site.

FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar at (202) 245-0395. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: Section 10501(b) of the Interstate Commerce 
Act, 49 U.S.C. 10501(b), specifically provides that both ``the 
jurisdiction of the Board over transportation by rail carriers'' and 
the ``remedies provided under [49 U.S.C. 10101-11908] are exclusive and 
preempt the remedies under Federal or State law.'' Prior to enactment 
of the Clean Railroads Act, a solid waste rail transfer facility owned 
by a rail carrier, in general, came within the Board's jurisdiction as 
part of transportation by rail carrier. Accordingly, any form of state 
or local permitting or preclearance (including zoning) that, by its 
nature, could have been used to deny a railroad its ability to 
construct and conduct activities involving rail transportation at a 
solid waste rail transfer facility was preempted, as were other state 
laws that had the effect of managing or governing rail transportation. 
See 49 U.S.C. 10501(b); N.Y. Susquehanna & W. Ry. Corp. 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) (Green Mountain).
    The purpose of the Clean Railroads Act is to establish that solid 
waste rail transfer facilities, as defined in section 10908(e)(1)(H), 
must now comply with all applicable federal and state requirements 
respecting pollution prevention and abatement, environmental protection 
and restoration, and protection of public health and safety, including 
laws governing solid waste, to the same extent as any similar solid 
waste management facility. The CRA gives the Board the power, if 
petitioned, to determine the placement of solid waste rail transfer 
facilities that are part of the national rail system through the 
issuance of land-use-exemption permits, which preempt state and local 
laws and regulations ``affecting the siting'' of such facilities. See 
49 U.S.C. 10909(f). The CRA focuses on the Board's jurisdiction and 
regulatory authority with regard to the siting of solid waste rail 
transfer facilities. It is not meant to affect a rail carrier's 
transportation-related activities involving other commodities. See 49 
U.S.C. 10908(d).
    More specifically, section 602 of the Clean Railroads Act amends 49 
U.S.C. 10501(c)(2)(B) to remove the Board's jurisdiction over solid 
waste rail transfer facilities, except for the authority to preempt 
state and local laws and regulations through the issuance of land-use-
exemption permits as set forth in sections 603-04 of that act, which 
are codified at 49 U.S.C. 10908-09. The Clean Railroads Act leaves all 
other regulation of solid waste rail transfer facilities to the states.
    New section 10908, ``Regulation of solid waste rail transfer 
facilities,'' sets forth the general rule, in subsection (a), that a 
solid waste rail transfer facility must comply with federal and state 
laws regarding pollution, protection and restoration of the 
environment, and protection of public health and safety to the same 
extent that those laws would apply to any similar solid waste 
management facility that is not owned or operated by or on behalf of a 
rail carrier, except as provided in new section 10909, ``Solid waste 
rail transfer facility land-use exemption authority.'' Section 10908(b) 
sets forth transition rules for existing solid waste transfer 
facilities. An existing facility has 90 days to comply with all 
applicable federal and state requirements except for those requiring 
permits, see section 10908(b)(1), and 180 days to apply for all 
required federal and state non-siting permits, see section 
10908(b)(2)(A). The facility can continue to operate during the 
pendency of the non-siting permitting process. See id. Existing 
facilities are not required to obtain state siting permits or a land-
use-exemption permit from the Board. See section 10908(b)(2)(B). 
However, the governor of the state in which an existing facility is 
located may file a petition with the Board under section 10908(b)(2)(B) 
to require the facility to apply for a federal land-use-exemption 
permit. The Board must accept a complete petition filed by the Governor 
or his or her designee.\1\
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    \1\ New section 10908 also includes a number of definitions, 
clarifies that the Clean Railroads Act does not affect railroad 
operations with respect to non-waste commodities, and also 
establishes that a railroad's common carrier obligation does not 
apply to a solid waste rail transfer facility that does not have the 
required federal and state permits, including a land-use-exemption 
permit, if necessary. See sections 10908(c)-(e).
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    New section 10909, ``Solid waste rail transfer facility land-use 
exemption,'' prescribes the land-use-exemption authority of the Board 
regarding solid waste rail transfer facilities. The Board's 
interpretation of section 10909(a) is discussed below. The Board may 
only grant a land-use-exemption permit if it determines that the 
facility does not pose an unreasonable risk to public health, safety or 
the environment at that location, after weighing, inter alia, the 
facility's potential benefits to and adverse impacts on public health 
and safety, the environment, interstate commerce, and the 
transportation of solid waste by rail. See section 10909(c). Congress 
also listed a number of factors for the Board to consider in a land-
use-exemption proceeding. See section 10909(d). When the Board issues a 
land-use-exemption permit, all state laws, regulations, orders, or 
other requirements affecting the siting of the facility are preempted 
with respect to that facility. See section 10909(f). However, the Board 
may require compliance with some or all of those laws and regulations 
as a condition of its approval of an application for a land-use-
exemption permit. Id.
    The Clean Railroads Act also adds section 10910, ``Effect on other 
statutes and authorities,'' which preserves the state's traditional 
police powers to require railroads to comply with environmental, public 
health, and public safety regulations so long as the regulations are 
not unreasonably burdensome to interstate commerce and do not 
discriminate against rail carriers.
    Pursuant to new section 10909(b), the Board must ``publish 
procedures governing the submission and review of applications for 
solid waste rail transfer facility land-use exemptions,'' not later 
than 90 days after the Clean Railroads Act became law. 49 U.S.C. 
10909(b).\2\

[[Page 4716]]

The purpose of this decision is to adopt interim rules, which will be 
codified as Part 1155 of Title 49 of the Code of Federal Regulations, 
as set forth below. The Board is seeking comment on these rules.
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    \2\ Specifically, the Clean Railroads Act requires that the 
regulations, which we are adopting today, include the following:
    (1) The information that must be provided in the application for 
a land-use exemption that explains how the facility will not pose an 
unreasonable risk to public health, safety, or the environment, see 
Rule 1155.22, ``Contents of application.''
    (2) The information necessary to give notice to the public and 
give the public time to comment, including specific notice to the 
municipality where the facility is located, the state where it is 
located, and any Federal or State regional planning entity where it 
is located, see Rules 1155.20, ``Notice of intent to apply for land-
use-exemption permit,'' 1155.21, ``Form of notice,'' 1155.24, 
``Filings and service of application,'' and 1155.25, ``Participation 
in application proceedings.''
    (3) The Board's review timeline, with the understanding that a 
final decision must be issued 90 days from the close of the record, 
see Rule 1155.27, ``Board determination under 49 U.S.C. 10909.''
    (4) The Board's expedited timelines for petitions to modify, 
amend, or revoke land-use exemptions, see Rule 1155.25, 
``Participation in application proceedings.''
    (5) The process for a State, under section 10908(b)(2)(B), to 
petition the Board to require an existing facility to apply for a 
land-use exemption, see subpart B.
    (6) The process for a facility or rail carrier to petition the 
Board for a land-use exemption, see subpart C.
    See 49 U.S.C. 10909(b). We have set forth interim rules below, 
and invite comment on them from the public, recognizing that changes 
to the interim rules may have an effect on the Board's narrative 
interpretation set forth in this notice, and vice versa.
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    We recognize, however, that central to understanding these interim 
rules is an understanding of how we interpret the Clean Railroads Act 
itself. Therefore, we discuss the definitions of a solid waste rail 
transfer facility and a land-use-exemption permit; describe what the 
Clean Railroads Act requires of existing \3\ and proposed solid waste 
rail transfer facilities; discuss the role of the Board; and describe 
the effects of the CRA and a land-use-exemption permit. We invite 
public comments on the interim rules and any other aspect of our 
interpretation of the Clean Railroads Act.
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    \3\ A solid waste rail transfer facility in existence on October 
16, 2008, is considered an existing facility.
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The Board's Interpretation of the Clean Railroads Act

    The Board recognizes that the intent of the Clean Railroads Act is 
to regulate solid waste rail transfer facilities at the federal and 
state levels in the same manner as non-railroad solid waste management 
facilities. The CRA preserves an important role for the Board by 
establishing a permitting process regarding siting. The following 
discussion is organized as follows: (1) What is a solid waste rail 
transfer facility; (2) what is a land-use-exemption permit; (3) what 
must existing and proposed solid waste rail transfer facilities do to 
comply with the Clean Railroads Act; (4) what is the Board's role under 
the Clean Railroads Act; and (5) what are the effects of the Clean 
Railroads Act and a land-use-exemption permit.

1. What Is a Solid Waste Rail Transfer Facility?

    The Clean Railroads Act applies only to solid waste rail transfer 
facilities. See section 10908(d). A solid waste rail transfer facility 
is defined as including the portion of a facility: (1) That is owned or 
operated by or on behalf of a rail carrier; (2) where solid waste is 
treated as a commodity transported for a charge; (3) where the solid 
waste is collected, stored, separated, processed, treated, managed, 
disposed of, or transferred; and (4) to the extent that solid-waste 
activity is conducted outside of the original shipping container. See 
section 10908(e)(1)(H)(i).\4\ The CRA does not apply to any facility or 
portion of a facility that does not meet all of these factors. Whether 
a facility would fall within the state's or the Board's jurisdiction 
appears to depend upon which of those criteria the facility does not 
meet. For example, if a facility meets all other criteria but is not 
owned or operated by or on behalf of a rail carrier, then the Board has 
no jurisdiction. If, on the other hand, a facility meets all other 
criteria but the activity conducted at the facility is limited to 
transferring solid waste in the original shipping container, then the 
facility falls under the Board's general jurisdiction, not the Board's 
jurisdiction under the Clean Railroads Act.
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    \4\ See section 10908(e) for definitions of ``solid waste'' and 
related terms.
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    The Clean Railroads Act excludes from the definition of solid waste 
rail transfer facility those facilities where the solid-waste activity 
is the direct transfer or transload of solid waste from a tank truck to 
a rail tank car. See 49 U.S.C. 10908(e)(1)(H)(ii)(II). The Clean 
Railroads Act also excludes from the definition the portion of a 
facility where the only activity is railroad transportation of solid 
waste after the waste has been loaded for shipment in or on a rail car, 
including interchanging rail cars of solid waste. See 49 U.S.C. 
10908(e)(1)(H)(ii)(I). In such cases, assuming the facility, or portion 
thereof, meets the other necessary qualifications, it would be subject 
to the Board's general jurisdiction over rail transportation and 
entitled to preemption from most state and local laws, including siting 
laws, under section 10501(b). See Green Mountain, 404 F.3d at 641-43.
    Due to Congress' intent to limit the definition of a solid waste 
rail transfer facility in this matter, we provide in Rule 1155.10, 
``Contents of petition,'' that when a state petitions the Board to 
require an existing facility to apply for a land-use exemption, the 
Governor or his or her designee must submit a good-faith certification 
that the subject facility meets the CRA's definition of a solid waste 
rail transfer facility.
    A property could host different activities subject to varying 
levels of Board jurisdiction, or host activities not within the Board's 
jurisdiction at all. Because of this possibility, the Board also 
requires in Rule 1155.22, ``Contents of application,'' that a solid 
waste rail transfer facility's application contain a technical drawing 
of the facility with specific demarcations detailing what activities 
will be occurring in what portions of the facility. We will also 
require that a facility detail in its application those areas of the 
property that it has set aside for future growth, so that the land-use-
exemption permit may include those areas where expansion may occur, 
without the need for modifying or amending the original permit. These 
requirements should help to clarify for states and the public at large 
the extent of a facility's activities and use of its land.

2. What Is a Land-Use-Exemption Permit?

    A land-use-exemption permit is the license that the Board will 
issue under the Clean Railroads Act to a qualifying solid waste rail 
transfer facility. To have federal preemption under the CRA, a new 
solid waste rail transfer facility must possess a land-use-exemption 
permit. Below we clarify two issues with regard to land-use-exemption 
permits to aid in understanding what a land-use-exemption permit is and 
what it does.
A. ``Land-Use Exemption'' and ``Siting Permit''
    The Clean Railroads Act uses two terms to describe the license that 
the Board may issue to a solid waste rail transfer facility. It uses 
the term ``land-use exemption'' when the carrier or facility involved 
seeks the license (see, e.g., new section 10909(a)(1), (b)(6)), and the 
term ``siting permit'' when the Governor of the state initiates the 
Board proceeding with respect to an existing facility (see new section 
10909(a)(2), (b)(5)). The two instances in which the phrase ``siting 
permit'' is used to describe action of the Board are in section 
10909(b)(5) and (e). Reading those references in context, we believe 
that Congress intended ``siting permit'' to be synonymous with ``land-
use exemption.'' \5\ For simplicity, we will

[[Page 4717]]

use the single term ``land-use-exemption permit'' to refer to any 
license the Board may issue to a solid waste rail transfer facility.
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    \5\ Section 10909(b)(5) references the process to be employed by 
the Board when a state petitions the Board ``to require a solid 
waste transfer facility or a rail carrier that owns or operates such 
a facility to apply for a siting permit.'' This language refers to 
the state petition process in section 10908(b)(2)(B), which does not 
use ``siting permit'' to describe what the Board issues. Instead, it 
explains that the state ``may petition the Board to require the 
facility to apply for a land-use exemption.'' That section further 
states that the ``facility shall be required to have a Board-issued 
land-use exemption'' to operate.
    Section 10909(e) states that a solid waste rail transfer 
facility ``shall submit a complete application for a siting permit 
to the Board pursuant to the procedures issued pursuant to 
subsection (b).'' Section 10909(b) is titled ``Land-Use Exemption 
Procedures'' and requires the Board to issue procedures for 
submission and review of ``land-use exemptions.'' Section 10909(e) 
also states that a state may not enforce certain laws affecting the 
siting of an existing facility until ``the Board has approved or 
denied a permit pursuant to subsection (c).'' Section 10909(c)(1) 
sets out the Board's standard of review, stating ``the Board may 
only issue a land-use exemption * * *'' in certain instances; while 
section 10909(c)(2) states ``the Board may not grant a land-use 
exemption * * *'' in other circumstances. Though section 10909(e) 
uses ``siting permit,'' neither of the other statutory sections 
referenced therein uses that phrase. Rather, each employs ``land-use 
exemption.''
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B. The Scope of the Phrase ``Affecting the Siting''
    Central to an understanding of the extent of the Board's authority 
under the Clean Railroads Act and the scope of a land-use-exemption 
permit is the interpretation of the phrase ``affecting the siting.'' 
Section 10909(f) preempts a solid waste rail transfer facility from 
compliance with ``all State laws, regulations, orders, or other 
requirements affecting the siting'' of a facility if the solid waste 
rail transfer facility is granted a land-use-exemption permit by the 
Board.\6\
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    \6\ The term ``affecting the siting'' also is used in section 
10909(a)(1), ``Authority,'' which authorizes the Board to issue a 
land-use-exemption permit to a facility if, among other things, the 
Board ``finds that a State, local, or municipal law, regulation, 
order, or other requirement affecting the siting of such facility'' 
is either unreasonably burdensome to interstate commerce or 
discriminates against solid waste rail transfer facilities or rail 
carriers; and in section 10909(e), ``Existing Facilities,'' which 
bars a state from enforcing any ``law, regulation, order, or other 
requirement affecting the siting of '' an existing solid waste rail 
transfer facility during the pendency of a facility's land-use-
exemption permit application with the Board.
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    We believe that the term ``affecting the siting'' was purposefully 
chosen to provide facilities an opportunity to invoke the land-use-
exemption-permit process regardless of the traditional characterization 
of a particular law.\7\ But we also recognize that Congress did not 
want to shield solid waste rail transfer facilities from complying with 
the same types of pollution, public health and safety, and 
environmental laws with which other similar solid waste management 
facilities must comply. Until the Board gains experience applying the 
Clean Railroads Act, we are not prepared to determine what types of 
laws could ``affect siting'' for purposes of the Clean Railroads Act. 
As discussed below, applicants will be required to identify those laws 
that they believe affect the siting of a particular solid waste rail 
transfer facility, as will any public participant in the proceeding.
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    \7\ We understand that ``siting'' laws or regulations, in 
general, may be read to refer to laws or regulations that 
traditionally are labeled as zoning or land-use laws. We recognize, 
however, that there also may be a variety of other laws, such as 
environmental laws, that are particular to solid waste rail transfer 
facilities and, when applied to a solid waste rail transfer 
facility, may affect the siting of the facility on a specific piece 
of property.
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3. What Actions Must Facilities Take To Comply With the Clean Railroads 
Act?

    If a facility, or portion thereof, may be categorized as a solid 
waste rail transfer facility, it must comply with all federal and state 
laws \8\ regarding pollution, protection and restoration of the 
environment, and the protection of public health and safety, to the 
same extent as any similar solid waste management facility. See 49 
U.S.C. 10908(a). Compliance with state and local laws that affect the 
siting of a facility will not be necessary if the Board issues a land-
use-exemption permit. See 49 U.S.C. 10909(f). However, pursuant to that 
section, the Board may require compliance with such state laws, 
regulations, orders, or other requirements as a condition of a land-
use-exemption permit. Section 10909(a) sets forth the circumstances in 
which an existing or proposed facility may obtain a Board-issued land-
use-exemption permit.
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    \8\ We note that, under the CRA, the laws, regulations, 
ordinances, orders, and other requirements of a political 
subdivision of a state, such as a locality or municipality, are not 
applicable to solid waste rail transfer facilities unless the state 
has specifically delegated such power to the political subdivision. 
See 49 U.S.C. 10908(e)(3).
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    In general, any facility may come to the Board under section 
10909(a)(1). Indeed, the last clause of the subparagraph--permitting 
``a rail carrier that owns or operates such a facility [to] petition[ ] 
the Board for such an exemption''--allows a rail carrier to petition 
the Board for a land-use-exemption permit without first receiving an 
unsatisfactory result from a state agency, regardless of the facility's 
characterization as existing or proposed. The rail carrier would not 
need to make any showing to the Board of unreasonable burden or 
discrimination prior to applying for a land-use-exemption permit. 
Rather, the rail carrier could come in under Subpart C of our interim 
rules to obtain a land-use-exemption permit.\9\
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    \9\ Subpart C contains the rules for applying for a land-use-
exemption permit.
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    The first part of section 10909(a)(1) states, ``the Board finds 
that a State, local, or municipal law, regulation, order, or other 
requirement affecting the siting of such facility unreasonably burdens 
the interstate transportation of solid waste by railroad, discriminates 
against the railroad transportation of solid waste and a solid waste 
rail transfer facility.'' We believe that this clause contemplates a 
separate route for solid waste rail transfer facilities to come before 
the Board. It provides an opportunity to a facility that has first 
applied to the appropriate state agency for those state permits 
affecting the siting of a facility and that has received an 
unsatisfactory result to apply to the Board for a land-use-exemption 
permit. After receiving an unsatisfactory result from the state, a 
solid waste rail transfer facility could apply to the Board for a land-
use-exemption permit. It must, however, make at least one of two 
showings with regard to the state's action or the state law: (1) The 
state has placed an unreasonable burden on railroad transportation of 
solid waste, or (2) a state law discriminates against railroad 
transportation of solid waste and a solid waste rail transfer facility.
    The Board, prior to considering whether the solid waste rail 
transfer facility is an unreasonable risk to the public health, safety, 
or the environment under 10909(c)(1), would have to make an initial 
determination about the unreasonableness or discriminatory nature of 
the state action or law in question. Such an initial determination 
would be a predicate to any Board consideration of whether to grant or 
deny the application for a land-use-exemption permit. Rule 1155.23, 
``Additional requirements when filing after an unsatisfactory result 
from a state, local, or municipal authority affecting the siting of the 
facility,'' provides additional requirements for a facility to satisfy 
were it to apply to the Board in this manner. We believe one of the 
purposes of section 10909(a)(1) is to provide a facility with an 
opportunity to seek a land-use-exemption permit after receiving an 
unsatisfactory result from the state if the facility believes that the 
state is unreasonably burdening the interstate transportation of solid 
waste by railroad or is discriminating against the railroad 
transportation of solid waste and a solid waste rail transfer facility.
    It is important to note that a proposed facility might never come 
before the Board. If a proposed facility applies to the requisite state 
agency for all state permits affecting the siting and those permits are 
granted, the Board might never become involved in the process. 
Similarly, the Board would not become involved with state permits that 
do not affect the siting of the proposed facility, because the Board's 
jurisdiction under the Clean Railroads Act only extends to

[[Page 4718]]

land-use-exemption permits. Regardless of whether a proposed facility 
comes before the Board or not, we note that, in order to lawfully 
operate, a proposed solid waste rail transfer facility will need to 
comply with all state laws, as described in section 10908(a), that do 
not affect the siting of a facility.
    As noted, existing solid waste rail transfer facilities have 
separate requirements they must meet under the Clean Railroads Act. To 
remain in operation, the CRA requires an existing facility to comply 
with all federal and state laws regarding pollution, protection and 
restoration of the environment, and the protection of public health and 
safety, except for permits, within 90 days, i.e., by January 14, 2009. 
See 49 U.S.C. 10908(b)(1). For those state laws requiring permits, an 
existing facility need not possess any state (non-siting) permit to 
remain in operation if it has, in good faith, submitted an application 
to the proper state agency (or agencies) for each permit within 180 
days of enactment, i.e., by April 14, 2009. See 49 U.S.C. 
10908(b)(2)(A)(i). After submitting a good-faith application, the 
existing facility may remain in operation until a final decision either 
approving or denying each one of those permits has been made.\10\ See 
49 U.S.C. 10908(b)(2)(A)(ii).
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    \10\ For example, if an existing facility must receive state 
(non-siting) permits from five agencies, the existing facility may 
remain in operation until all five agencies have made their 
respective final decisions. If the state (non-siting) permits are 
all granted, the existing facility may continue to operate subject 
to the siting permit requirements discussed below. If any of those 
state (non-siting) permits are denied, the consequences set forth 
under the governing law(s) with regard to that permit would 
determine whether operations could continue.
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    If an existing facility already has a state siting permit, it need 
not take any further steps to remain in operation, aside from those 
described above regarding federal and state non-siting laws. See 
section 10908(b)(2)(B). If the existing facility does not have a state 
siting permit, it need not obtain any siting permits from the state or 
the Board to continue operations or to be considered in compliance with 
state land-use requirements, see 49 U.S.C. 10908(b)(2)(B), unless the 
state, acting through the governor or his/her designee, petitions the 
Board to require that the solid waste rail transfer facility apply for 
a land-use-exemption permit from the Board. Once the state, acting 
through the governor or his/her designee submits a perfected petition, 
then the solid waste rail transfer facility must file an application 
with the Board and obtain a land-use-exemption permit to continue to 
operate. See 49 U.S.C. 10909(a)(2), 10908(b)(2)(B). The contents of the 
petition that the state must file with the Board is set forth in Rule 
1155.10, ``Contents of petition.'' This includes the identifying 
information for the facility and a certification by the state that the 
facility meets the definition of solid waste rail transfer facility set 
forth in the Clean Railroads Act.
    When a state petitions the Board, Rule 1155.12, ``Participation in 
petition proceedings,'' allows 20 days for the subject facility to 
reply regarding the classification by the state of that facility as an 
existing facility under section 10908(b). If the state's classification 
is not challenged, or if the state prevails in showing that the 
facility is a solid waste rail transfer facility, the Board will grant 
the petition, and the facility will be required to obtain a Board-
issued land-use-exemption permit pursuant to section 10909 to continue 
to operate. See 49 U.S.C. 10908(b)(2)(B).
    Upon the Board's acceptance of a state petition, the existing 
facility will be required to submit a complete application for a Board-
issued land-use-exemption permit. See 49 U.S.C. 10909(e). The process 
for submitting an application and the information to be contained 
therein are set forth in Subpart C of the interim rules. See 49 U.S.C. 
10909(b). During the time that an existing facility's application is 
pending before the Board, the state would be preempted from enforcing 
any laws, regulations, orders, or other requirements affecting the 
siting of a facility. See 49 U.S.C. 10909(e). We read section 10909(e) 
in conjunction with section 10908(b)(2)(B) to allow an existing 
facility that is the subject of a state petition to continue its 
operations until a final decision on the land-use-exemption-permit 
petition is made by the Board. See 49 U.S.C. 10908(b)(2)(B), 10909(e).

4. What Is the Board's Role Under the Clean Railroads Act?

    The primary role of the Board under the Clean Railroads Act is to 
issue land-use-exemption permits for solid waste rail transfer 
facilities that meet the CRA's standards. The Board may issue land-use-
exemption permits only for solid waste rail transfer facilities that 
are or are proposed to be operated by or on behalf of a rail carrier. 
See 49 U.S.C. 10909(a). A petition for such a land-use-exemption permit 
could reach the Board in one of three ways: (1) A proposed facility has 
been denied its state application for a permit that affects the siting 
of a facility, or received an otherwise unsatisfactory result from the 
state, including inordinate delay, and that facility attempts to 
demonstrate, as noted above, that the state is placing an unreasonable 
burden on rail transportation of solid waste, or that the state is 
discriminating against railroad transportation of solid waste and the 
facility; (2) a rail carrier that owns or operates an existing facility 
or plans to own or operate a new facility petitions the Board for a 
land-use-exemption permit without first receiving an unsatisfactory 
result from the state; or (3) a state petitions the Board to require an 
existing facility to apply for a land-use-exemption permit. See 49 
U.S.C. 10909(a).
    Once the matter is before the Board, the Board may issue a land-
use-exemption permit if it finds the facility does not pose an 
unreasonable risk to public health, safety, or the environment. See 49 
U.S.C. 10909(c)(1). To make this finding, the Board must weigh the 
facility's potential benefits to and adverse impacts on public health, 
public safety, the environment, interstate commerce, and transportation 
of solid waste by rail. See 49 U.S.C. 10909(c)(1). The Clean Railroads 
Act lists six factors the Board must consider in carrying out this 
balancing test, as follows:
    (1) The land-use, zoning, and siting regulations or solid waste 
planning requirements of the State or State subdivision in which the 
facility is or will be located that are applicable to solid waste 
transfer facilities, including those that are not owned or operated by 
or on behalf of a rail carrier;
    (2) The land-use, zoning, and siting regulations or solid waste 
planning requirements applicable to the property where the solid waste 
rail transfer facility is proposed to be located;
    (3) Regional transportation planning requirements developed 
pursuant to Federal and State law;
    (4) Regional solid waste disposal plans developed pursuant to State 
or Federal law;
    (5) Any Federal and State environmental protection laws or 
regulations applicable to the site; and
    (6) Any unreasonable burdens imposed on the interstate 
transportation of solid waste by railroad, or the potential for 
discrimination against the railroad transportation of solid waste, a 
solid waste rail transfer facility, or a rail carrier that owns or 
operates such a facility.

49 U.S.C. 10909(d)(1)-(6). The Board also can consider any other 
factors it deems relevant. See 49 U.S.C. 10909(d)(7).
    To assist us in weighing all of these considerations, we require, 
in Rule

[[Page 4719]]

1155.22, ``Contents of application,'' that the applicant organize its 
request in terms of (1) the Board's standards for review of an 
application and (2) all of the factors the Board is required to 
consider under the CRA, including an explanation of how those factors 
relate to the subject facility. The applicant should also address any 
additional factors that it believes the Board should consider.
    The Clean Railroads Act precludes the Board from issuing a land-
use-exemption permit if the proposed facility, or any part of the 
facility, is to be located on land affiliated with the National Park 
System, the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild and 
Scenic Rivers System, a National Reserve, or a National Monument. See 
49 U.S.C. 10909(c)(2). Moreover, if the facility would be located on 
lands referenced in the Highlands Conservation Act for which a state 
has implemented a conservation management plan, the Board may issue a 
land-use-exemption permit for the proposed facility only if operation 
of the facility would be consistent with restrictions placed on those 
lands. See id. Because of these restrictions, the Board requires in 
Rule 1155.22, ``Contents of application,'' that an applicant state 
whether the proposed solid waste rail transfer facility or any portion 
thereof is located on any of these lands of national interest.\11\ We 
also require in Rule 1155.20, ``Notice of intent to apply for a land-
use-exemption permit,'' that an applicant notify the managing agency of 
each land group noted above of the facility's proposed location so that 
those entities may verify, if they so chose, that the facility is not 
located on such lands.
---------------------------------------------------------------------------

    \11\ While location on these lands of national interest is not a 
bar to the Board's issuance of a land-use-exemption permit for an 
existing facility, it would still be a relevant factor under 49 
U.S.C. 10909(d)(7).
---------------------------------------------------------------------------

    Though not specifically mentioned in the Clean Railroads Act, the 
Board recognizes that the issuance of a land-use-exemption permit is a 
major federal action under the National Environmental Policy Act 
(NEPA), 42 U.S.C. 4321 et seq. The Board plans to conduct the 
appropriate level of environmental review for each land-use-exemption 
permit proceeding, pursuant to the Council on Environmental Quality's 
regulations, 40 CFR 1500-1508, and the Board's own environmental 
regulations, 49 CFR 1105. We also note that the Clean Railroads Act 
requires us to issue a final decision within 90 days of the close of 
the record, so that the time for issuance of a final decision will vary 
depending upon the type of environmental review conducted, if at all. 
See 49 U.S.C. 10909(b)(3).
    The Clean Railroads Act also specifically authorizes the Board to 
set reasonable fees for permit applicants. See 49 U.S.C. 10909(h). 
Those fees may include the costs associated with retaining third-party 
consultants (which are not included in the filing fee). See id. We 
anticipate that the amount of Board resources that will be necessary 
for processing such applications, including legal and environmental 
analysis, will be similar to the amount of resources required in 
abandonment proceedings. Thus, we mirror the filing fees charged in 
abandonment proceedings as follows: (1) An application for a land-use-
exemption permit for a facility not in existence as of October 16, 
2008, will require a filing fee of $22,200 (the amount set for an 
abandonment application); and (2) an application for a land-use-
exemption permit for a facility existing as of October 16, 2008, will 
require a filing fee of $6,300 (the amount set for an abandonment 
petition for exemption). We amend 49 CFR 1002.2(f), ``Schedule of 
filing fees,'' to reflect the new fees.
    The fees set forth here reflect only an estimate of the amount of 
resources that the Board will use to process land-use-exemption permit 
applications. We will update these fees periodically based on the cost 
study formula set forth at 49 CFR 1002.3(d) and other factors relevant 
to Board fee policy. See, e.g., Regulations Governing Fees for Services 
Performed in Connection with Licensing and Related Services--2008 
Update, STB Ex Parte No. 542 (Sub-No. 15) (STB served June 18, 2008).

5. What Are the Effects of a Board-Issued Land-Use-Exemption Permit and 
the Clean Railroads Act?

    The Clean Railroads Act only affects solid waste rail transfer 
facilities and not rail carriers' transportation-related activities 
regarding other, non-waste commodities. See 49 U.S.C. 10908(d). When 
the Board grants a land-use-exemption permit, a solid waste rail 
transfer facility is expressly preempted from complying with any and 
all State laws, regulations, orders, or other requirements affecting 
the siting of a facility except to the extent that the Board imposes as 
a condition of the exemption that the facility comply with particular 
state requirements. See 49 U.S.C. 10909(f). A solid waste rail transfer 
facility must comply, however, with all federal laws and with all other 
state laws regarding pollution, protection and restoration of the 
environment, and the protection of public safety.
    We note that a land-use-exemption permit would not preempt a 
state's traditional police powers to require compliance with state and 
local environmental, public health, and public safety standards that 
are not unreasonably burdensome to interstate commerce and do not 
discriminate against rail carriers. See 49 U.S.C. 10910. Moreover, the 
Board may exempt a facility from compliance with state laws, 
regulations, orders, or other requirements affecting the siting of the 
facility only if it determines that a facility does not pose an 
unreasonable risk to public health, safety, or the environment.
    If the Board denies a land-use-exemption permit application, the 
solid waste rail transfer facility would not come within the Board's 
preemptive jurisdiction and the state's laws, regulations, orders, or 
other requirements affecting the siting of a facility would govern that 
solid waste rail transfer facility. The facility would not be permitted 
to operate as a solid waste rail transfer facility at that location 
unless and until it obtained the necessary siting permits from the 
applicable state authority.
    The Clean Railroads Act contemplates the possible need for changes 
to a Board-issued land-use-exemption permit. Under section 10909(b)(4), 
a Board-issued land-use-exemption permit is subject to petitions to 
modify, amend, or revoke, which must be considered by the Board in an 
expedited process. The Board establishes procedures in Rule 1155.28, 
``Appellate Procedures.'' For petitions to modify, amend, or revoke a 
land-use-exemption permit, the interim rules apply the Board's normal 
standard of review for a petition to reopen an administratively final 
Board action. See 49 CFR 1115.4. The petition must demonstrate material 
error, new evidence, or substantially changed circumstances that 
warrant the requisite action sought. A Board decision will be due 
within 90 days after the record is complete.
    Finally, the Clean Railroads Act specifically provides that if a 
facility does not have the requisite state permits or a Board-issued 
land-use-exemption permit (if required), it is not a violation of the 
rail carrier's common-carrier obligation for the carrier to deny 
service to a customer seeking solid waste rail transfer service at that 
facility. See 49 U.S.C. 10908(c). We clarify here that, if a facility 
does have the requisite state permits and (if required) a Board-issued

[[Page 4720]]

land-use-exemption permit, then the common-carrier obligation would 
apply.
    Pursuant to 5 U.S.C. 605(b), the Board certifies that the proposed 
action will not have a significant economic effect on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The interim rules are adopted.
    2. Comments on the interim rules are due by February 23, 2009, and 
reply comments are due by March 23, 2009.
    3. This decision is effective on January 14, 2009.

    Decided: January 14, 2009.

    By the Board, Chairman Nottingham, Vice Chairman Mulvey, and 
Commissioner Buttrey.
Jeffrey Herzig,
Clearance Clerk.

List of Subjects

49 CFR Part 1001

    Administrative practice and procedure.

49 CFR Part 1011

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies).

49 CFR Part 1155

    Administrative practices and procedure, Railroad, Solid waste rail 
transfer facility.

0
For the reasons set forth in the preamble, the Surface Transportation 
Board amends title 49, chapter X, of the Code of Federal Regulations as 
follows:

PART 1002--FEES

0
1. The authority citation for part 1002 continues to read as follows:

    Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49 
U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514 
and 31 U.S.C. 3717.


0
2. Amend Sec.  1002.2 by adding paragraphs (f)(16), (17), and (18) to 
read as follows:


Sec.  1002.2  Filing fees.

* * * * *
    (f) * * *

------------------------------------------------------------------------
                     Type of proceeding                          Fee
------------------------------------------------------------------------
 
                              * * * * * * *
(16) An application for a land-use-exemption permit for a          6,300
 facility existing as of October 16, 2008 under 49 U.S.C.
 10909.....................................................
(17) An application for a land-use-exemption permit for a         22,200
 facility not existing as of October 16, 2008 under 49
 U.S.C. 10909..............................................
 
                              * * * * * * *
------------------------------------------------------------------------

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

0
3. The authority citation for part 1011 continues to read as follows:

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721, 
11123, 11124, 11144, 14122, and 15722.


0
4. Amend Sec.  1011.7 by adding paragraph (b)(17) to read as follows:


Sec.  1011.7  Delegation of authority by the Board to specific offices 
of the Board.

* * * * *
    (b) * * *
    (17) In land-use-exemption-permit application proceedings, whether 
to grant petitions for waiver of specific regulations listed in subpart 
C of 49 CFR part 1155.
* * * * *

0
5. Part 1155 is added to read as follows:

PART 1155--SOLID WASTE RAIL TRANSFER FACILITIES

Subpart A--General
Sec.
1155.1 Purpose and scope.
1155.2 Definitions.
Subpart B--Procedures Governing Petitions To Require a Facility in 
Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit
1155.10 Contents of petition.
1155.11 Filing and service of petition.
1155.12 Participation in petition procedures.
1155.13 Board determination with respect to a Governor's petition.
Subpart C--Procedures Governing Applications for a Land-Use-Exemption 
Permit and Petitions for Modifications, Amendments, or Revocations
1155.20 Notice of intent to apply for a land-use-exemption permit.
1155.21 Form of notice.
1155.22 Contents of application.
1155.23 Additional requirements when filing after an unsatisfactory 
result from a state, local, or municipal authority affecting the 
siting of the facility.
1155.24 Filings and service of application.
1155.25 Participation in application proceedings.
1155.26 Transfer and termination of the land-use-exemption permit.
1155.27 Board determinations under 49 U.S.C. 10909.
1155.28 Appellate procedures.

    Authority: 49 U.S.C. 10908, 49 U.S.C. 10909, 49 U.S.C. 10910.

Subpart A--General


Sec.  1155.1  Purpose and scope.

    49 U.S.C. 10501(c)(2)(B) excludes solid waste rail transfer 
facilities from the Board's jurisdiction except as provided under 49 
U.S.C. 10908 and 10909. Sections 10908 and 10909 provide the Board 
authority to issue land-use-exemption permits for solid waste rail 
transfer facilities when certain conditions are met. 49 CFR 1155 
contains regulations concerning land-use-exemption permits and the 
Board's standard for review.


Sec.  1155.2  Definitions.

    (a) Unless otherwise provided in the text of these regulations, the 
following definitions apply in this part:
    (1) Commercial and retail waste means material discarded by stores, 
offices, restaurants, warehouses, nonmanufacturing activities at 
industrial facilities, and other similar establishments or facilities.
    (2) Construction and demolition debris means waste building 
materials, packaging, and rubble resulting from construction, 
remodeling, repair, and demolition operations on pavements, houses, 
commercial buildings, and other structures.
    (3) Household waste means material discarded by residential 
dwellings, hotels, motels, and other similar permanent or temporary 
housing establishments or facilities.
    (4) Industrial waste means the solid waste generated by 
manufacturing and industrial and research and development processes and 
operations, including contaminated soil, nonhazardous oil spill cleanup 
waste and dry nonhazardous pesticides and chemical waste, but does not 
include hazardous waste regulated under subtitle C of the Solid Waste 
Disposal Act (42 U.S.C. 6921 et seq.), mining or oil and gas waste.

[[Page 4721]]

    (5) Institutional waste means material discarded by schools, 
nonmedical waste discarded by hospitals, material discarded by 
nonmanufacturing activities at prisons and government facilities, and 
material discarded by other similar establishments or facilities.
    (6) Municipal solid waste means household waste; commercial and 
retail waste; and institutional waste.
    (7) With the exception of waste generated by a rail carrier during 
track, track structure, or right-of-way construction, maintenance, or 
repair (including railroad ties and line-side poles) or waste generated 
as a result of a railroad accident, incident, or derailment, the term 
solid waste means construction and demolition debris; municipal solid 
waste; household waste; commercial and retail waste; institutional 
waste; sludge; industrial waste; and other solid waste, as determined 
appropriate by the Board.
    (8) Solid waste rail transfer facility--(i) Means the portion of a 
facility owned or operated by or on behalf of a rail carrier (as 
defined in 49 U.S.C. 10102) where solid waste, as a commodity to be 
transported for a charge, is collected, stored, separated, processed, 
treated, managed, disposed of, or transferred, when the activity takes 
place outside of original shipping containers; but (ii) Does not 
include--
    (A) The portion of a facility to the extent that activities taking 
place at such portion are comprised solely of the railroad 
transportation of solid waste after the solid waste is loaded for 
shipment on or in a rail car, including railroad transportation for the 
purpose of interchanging railroad cars containing solid waste 
shipments; or
    (B) A facility where solid waste is transferred or transloaded 
solely from a tank truck directly to a rail tank car.
    (9) Sludge means any solid, semi-solid or liquid waste generated 
from a municipal, commercial, or industrial wastewater treatment plant, 
water supply treatment plant, or air pollution control facility 
exclusive of the treated effluent from a wastewater treatment plant.
    (b) Exceptions. Notwithstanding paragraph (a) of this section, the 
terms household waste, commercial and retail waste, and institutional 
waste do not include yard waste and refuse-derived fuel; used oil; wood 
pallets; clean wood; medical or infectious waste; or motor vehicles 
(including motor vehicle parts or vehicle fluff).
    (c) ``Land-use-exemption permit'' means the authorization issued by 
the Board pursuant to the authority of 49 U.S.C. 10909(a) and includes 
the term ``siting permit'' in 49 U.S.C. 10909(e).
    (d) ``State laws, regulations, orders, or other requirements 
affecting the siting of a facility,'' as used in 49 U.S.C. 10909(f) and 
49 CFR 1155.27(d), include the requirements of a state or a political 
subdivision of a state, including a locality or municipality, affecting 
the siting of a facility.
    (e) ``State requirements'' as used in 49 U.S.C. 10908 does not 
include the laws, regulations, ordinances, orders, or other 
requirements of a political subdivision of a state, including a 
locality or municipality, unless a state expressly delegates such 
authority to such political subdivision.

Subpart B--Procedures Governing Petitions To Require a Facility in 
Existence on October 16, 2008, To Apply for a Land-Use-Exemption 
Permit


Sec.  1155.10  Contents of petition.

    A petition to require a solid waste rail transfer facility in 
existence on October 16, 2008, to apply for a land-use-exemption 
permit, submitted by the Governor of the state or that Governor's 
designee, shall contain the following information and shall be attested 
to by a person having personal knowledge of the matters contained 
therein:
    (a) The Governor's name.
    (b) The state's name and the name of any agency filing on behalf of 
the Governor.
    (c) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (d) The name of the rail carrier that owns or operates the 
facility.
    (e) A good-faith certification that the facility qualifies as a 
solid waste rail transfer facility pursuant to the definition in 49 
U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2 both as of the filing date of 
the petition and on October 16, 2008.
    (f) Relief sought (that the rail carrier that owns or operates the 
facility be required to apply for a land-use-exemption permit).
    (g) Name, title, and address of representative of petitioner to 
whom correspondence should be sent.


Sec.  1155.11  Filing and service of petition.

    (a) When the petition is filed with the Board, the petitioner shall 
serve, by first class mail, a copy of the petition on the rail carrier 
that owns or operates the solid waste rail transfer facility and on the 
facility if the address is different than the rail carrier's address. A 
copy of the certificate of service shall be filed with the Board at the 
same time.
    (b) Upon the filing of a petition, the Board will review the 
petition and determine whether it conforms to all applicable 
regulations. If the petition is substantially incomplete or its filing 
otherwise defective, the Board will reject the petition for stated 
reasons by order (which order will be administratively final) within 15 
days from the date of filing of the petition.


Sec.  1155.12  Participation in petition proceedings.

    (a) An interested person may file a reply to the petition 
challenging the Governor's classification of the facility as a solid 
waste rail transfer facility and may offer evidence to support its 
contention. The petitioner will have an opportunity to file a rebuttal.
    (b) Filing and service of replies.
    (1) Any reply shall be filed with the Board (the Secretary, Surface 
Transportation Board, 395 E Street, SW., Washington, DC 20423) within 
20 days of the filing with the Board of a petition to require a solid 
waste rail transfer facility in existence on October 16, 2008, to apply 
for a land-use-exemption permit.
    (2) A copy of the reply shall be served on petitioner or its 
representative at the time of filing with the Board. Each filing shall 
contain a certificate of service.
    (3) Any rebuttal to a reply shall be filed and served by petitioner 
no later than 30 days after the filing of the petition.


Sec.  1155.13  Board determination with respect to a Governor's 
petition.

    (a) The following schedule shall govern the process for Board 
consideration of and decisions regarding a petition to require a solid 
waste rail transfer facility in existence on October 16, 2008, to apply 
for a land-use-exemption permit, from the time the petition is filed 
until the time of the Board's decision on the merits:

    Day 0--Petition filed.
    Day 20--Due date for reply.
    Day 30--Due date for response to reply.

    (b) The Board shall accept the Governor's complete petition on a 
finding that the facility qualifies as a solid waste rail transfer 
facility pursuant to the definition in 49 U.S.C. 10908(e)(1)(H) and 49 
CFR 1155.2 both on the filing date of the petition and on October 16, 
2008. In the decision accepting the Governor's petition, the Board 
shall require that the rail carrier that owns or operates the facility 
file a land-use-exemption-permit application within 120 days of the 
service date of the decision.

[[Page 4722]]

Subpart C--Procedures Governing Applications for a Land-Use-
Exemption Permit


Sec.  1155.20  Notice of intent to apply for a land-use-exemption 
permit.

    (a) Filing and publication requirements. An applicant (i.e., a 
solid waste rail transfer facility, or the rail carrier that owns or 
operates the facility) shall give Notice of Intent to file a land-use-
exemption permit application by complying with the following 
procedures:
    (1) Filing. Applicant must serve its Notice of Intent on the Board 
in the format prescribed in 49 CFR 1155.21. The Notice of Intent shall 
be filed in accordance with the time requirements of paragraph (b) of 
this section.
    (2) Service. Applicant must serve, by first-class mail (unless 
otherwise specified), its Notice of Intent upon:
    (i) The Governor of the state where the facility is located;
    (ii) The state agency/ies and/or municipal agency/ies that would 
have permitting or review authority over the solid waste rail transfer 
facility absent 49 U.S.C. 10908 and 10909, these regulations, and 
federal preemption under 49 U.S.C. 10501(b); and
    (iii) The appropriate managing government agencies responsible for 
the groups of land listed in 49 U.S.C. 10909(c)(2).
    (3) Newspaper publication. Applicant must publish its Notice of 
Intent at least once during each of 3 consecutive weeks in a newspaper 
of general circulation in each county in which any part of the proposed 
or existing facility is located.
    (b) Time limits. (1) The Notice of Intent must be served on the 
parties discussed above at least 15 days, but not more than 30 days, 
prior to the filing of the land-use-exemption permit application;
    (2) The three required newspaper Notices must be published within 
the 30-day period prior to the filing of the application; and
    (3) The Notice of Intent must be filed with the Board either 
concurrently with service on the required parties or when the Notice is 
first published (whichever occurs first).
    (c) Environmental and Historic Reports. Applicant for a solid waste 
rail transfer facility, other than those in existence on October 16, 
2008, must also submit an Environmental Report containing the 
information described at 49 CFR 1105.7 at least 20 days prior to filing 
an application. Applicants shall concurrently file an historic report 
containing the information at 49 CFR 1105.8 if that regulation is 
applicable. The environmental and historic reporting requirements that 
would otherwise apply are waived, however, if the applicant hires a 
third-party consultant, the Board's Section of Environmental Analysis 
(SEA) approves the scope of the consultant's work, and the consultant 
works under SEA's supervision to prepare any environmental 
documentation that might be warranted. In such a case, the consultant 
acts on behalf of the Board, working under SEA's direction to collect 
the needed environmental information and compile it into a draft of the 
appropriate environmental documentation (an Environmental Impact 
Statement or a more limited Environmental Assessment). See 49 CFR 
1105.10(d).


Sec.  1155.21  Form of notice.

    The Notice of Intent to petition for a land-use-exemption permit 
shall be in the following form:

    STB Finance Docket No. ----(Sub-No. ----)
    Notice of Intent to petition for a land-use-exemption permit for 
a solid waste rail transfer facility.
    (Name of Applicant) gives notice that on or about (insert date 
application will be filed with the Board) it intends to file with 
the Surface Transportation Board, 395 E Street, SW., Washington, DC 
20423, an application for a land-use-exemption permit for a solid 
waste rail transfer facility as defined in 49 U.S.C. 10908(e)(1)(H) 
and 49 CFR 1155.2. The solid waste rail transfer facility is located 
at (full address, or, if not available, provide city, state, and 
United States Postal Service ZIP code). The solid waste rail 
transfer facility is located on a line of railroad known as ---- at 
milepost ---- between (station name) at milepost ---- and (station 
name) at milepost ----.
    The reason(s) for the proposed permit application is (are) ---- 
(explain briefly and clearly the activities undertaken, or proposed 
to be undertaken, by the applicant at the solid waste rail transfer 
facility. Also describe the specific state and local laws, 
regulations, orders or other requirements affecting siting from 
which the applicant requests entire or partial exemption that would 
otherwise apply and any action that the state, local, or municipal 
authority has taken affecting the siting of the facility.)
    (Include this paragraph for facilities not in existence on 
October 16, 2008). Applicant certifies that, based on information in 
its possession, the facility is not proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild 
and Scenic Rivers System, a National Reserve, or a National 
Monument. Applicant further certifies that the facility is not 
proposed to be located on lands referenced in The Highlands 
Conservation Act, Public Law No. 108-421, for which a state has 
implemented a conservation management plan (or, The facility is 
consistent with the restrictions implemented by (state) under The 
Highlands Conservation Act, Pub. L. No. 108-421, placed at its 
proposed location). Any relevant documentation in the railroad's 
possession on these issues will be made available promptly to those 
requesting it.
    (For facilities already in existence on October 16, 2008, 
address the extent to which the facility is or is not located in any 
of these types of lands, and to the extent that it is so located 
address any relevant criteria, and so certify.)
    The application containing the information set forth at 49 CFR 
1155.22 will include the applicant's entire case for the granting of 
the land-use-exemption permit (case in chief). Any interested 
person, after the application is filed on (insert date), may file 
with the Surface Transportation Board written comments concerning 
the application within 45 days after the application is filed.
    Comments should contain that party's entire case in support or 
opposition including the following, as appropriate:
    (1) Name, address, and organizational affiliation.
    (2) A statement describing commenter's interest in the 
proceeding, including information concerning the organization or 
public interest the commenter represents.
    (3) Specific reasons why commenter supports or opposes the 
application, taking into account the standards for the Board's 
review and consideration provided in 49 U.S.C. 10909(c), (d) and 
these regulations.
    (4) If the applicant files under 49 CFR 1155.23, specific 
reasons why commenter supports or opposes the Board's accepting the 
application.
    (5) Any rebuttal of material submitted by applicant.
    Written comments will be considered by the Board in determining 
what disposition to make of the application. Parties seeking 
information concerning the filing of comments should refer to 49 CFR 
1155.25.
    Written comments should indicate the proceeding designation STB 
Finance Docket No.---- (Sub-No. ----) and must be filed with the 
Secretary, Surface Transportation Board, 395 E Street, SW., 
Washington, DC 20423, no later than (insert the date 45 days after 
the date applicant intends to file its application). A copy of each 
written comment shall be served upon the representative of the 
applicant (insert name, address, and phone number). Except as 
otherwise set forth in 49 CFR 1155, each document filed with the 
Board must be served on all parties to the land-use-exemption-permit 
proceeding. 49 CFR 1104.12(a).
    Persons seeking further information concerning land-use-
exemption-permit procedures may contact the Surface Transportation 
Board or refer to 49 U.S.C. 10908, 10909, and the full land-use-
exemption-permit regulations at 49 CFR 1155.
    A copy of the application will be available for public 
inspection on or after (insert date the land-use-exemption-permit 
application is to be filed with Board). The applicant shall furnish 
a copy of the application to any

[[Page 4723]]

interested person proposing to file a comment, upon request.
    Questions concerning potential environmental issues may be 
directed to the Board's Section of Environmental Analysis. Where the 
preparation of environmental documentation under the National 
Environmental Policy Act is warranted, a Draft Environmental Impact 
Statement (EIS) (or more limited Environmental Assessment (EA), if 
appropriate) prepared by the Section of Environmental Analysis will 
be issued for public review and comment and served upon all parties 
of record and upon any agencies or other persons who commented 
during its preparation. The comments received will be addressed in 
the Final EIS or Post EA. The Board will take into account the 
results of the environmental review and any final recommended 
environmental mitigation in deciding what action to take on the 
application.

Sec.  1155.22  Contents of application.

    Applications for land-use-exemption permits shall contain the 
following information, including supporting documentation:
    (a) General. (1) Exact name of applicant.
    (2) Whether applicant is a common carrier by railroad subject to 49 
U.S.C. Subtitle IV, chapter 105.
    (3) Summary of why a land-use-exemption permit is being sought.
    (4) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (5) The line of railroad serving the facility, the milepost 
location of the facility, and the milepost and names of the stations 
that the facility is located between.
    (6) Name, title, and address of representative of applicant to whom 
comments should be sent.
    (7) Citation to all state, local, or municipal laws, regulations, 
orders, or other requirements affecting the siting of the solid waste 
rail transfer facility.
    (8) Copies of the specific state, local, or municipal laws, 
regulations, orders, or other requirements affecting the siting of the 
solid waste rail transfer facility from which the applicant requests 
entire or partial exemption that would otherwise apply, any publicly 
available material providing the criteria in the application of the 
regulations, and a description of any action that the state, local, or 
municipal authority has taken affecting the siting of the facility.
    (9) Certification that the laws, regulations, orders or other 
requirements from which the applicant requests exemption are not based 
on Federal laws, regulations, orders, or other requirements.
    (10) Certification that the facility complies with all state, 
local, or municipal laws, regulations, orders, or other requirements 
affecting the siting of the facility except those for which it seeks 
exemption.
    (11) Citation to the regulations listed in 49 CFR 1155.27(c)(1) 
through (5).
    (12) Certification that the applicant has applied or will apply for 
the appropriate state permits not affecting siting.
    (13) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild and 
Scenic Rivers System, a National Reserve, or a National Monument. For 
facilities in existence as of October 16, 2008, state whether the 
facility is located in any of these types of lands.
    (14) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on lands 
referenced in The Highlands Conservation Act, Public Law No. 108-421, 
for which a state has implemented a conservation management plan, or, 
that the facility is consistent with the restrictions implemented by 
the applicable state under The Highlands Conservation Act, Public Law 
No. 108-421, placed on its proposed location. For facilities in 
existence as of October 16, 2008, state whether the facility is located 
in any of these lands, and, if so, address whether the facility is 
consistent with the restrictions placed on the location by the 
applicable state under that law.
    (15) A detailed description of the operations and activities that 
will occur/are occurring at the facility.
    (16) Detailed map showing the subject facility on a sheet not 
larger than 8 x 10\1/2\ inches, drawn to scale, and with the scale 
shown thereon. The map must show, in clear relief, the exact location 
of the facility on the rail line and its relation to other rail lines 
in the area, highways, water routes, population centers and any 
geographic features that should be considered in determining whether 
the facility would pose an unreasonable risk to public health, safety, 
or the environment, pursuant to 49 U.S.C. 10909(c)(1).
    (17) Detailed drawing of the subject facility on a sheet not larger 
than 8 x 10\1/2\ inches, drawn to scale, and with the scale shown 
thereon. The drawing must show, in clear relief, the exact boundaries 
of the facility, structures at the facility, the location and type of 
the operations taking place at the facility, the proposed traffic 
configuration for the solid waste entering and leaving the facility, 
reasonable future expansion that the applicant requests to be included 
in the land-use-exemption permit, any geographic features that should 
be considered in determining whether the facility would pose an 
unreasonable risk to public health, safety, or the environment, 
pursuant to 49 U.S.C. 10909(c)(1), and any other information that the 
applicant would like to show.
    (b) A statement that sets forth in detail the reasons why the Board 
should grant a land-use-exemption permit to the applicant. The 
applicant shall organize its request in terms of the standards for the 
Board's review and consideration provided in 49 U.S.C. 10909(c), (d) 
and these regulations.
    (c) Environmental impact. The applicant shall certify that it has 
submitted an environmental and/or historical report containing the 
information in 49 CFR 1105.7 and 1105.8, if one is required, to allow 
the Board's Section of Environmental Analysis to determine whether 
preparation of environmental documentation is warranted, and, if so, 
whether a full Environmental Impact Statement or a more limited 
Environmental Assessment should be prepared.
    (d) Additional information. The applicant shall submit such 
additional information to support its application as the Board may 
require.
    (e) Draft Federal Register Notice. The applicant shall submit a 
draft notice of its application to be published by the Board. In 
addition to the regular number of copies that must be filed with the 
Board, the applicant must submit a copy of the draft notice as data 
contained on a computer diskette compatible with the Board's current 
word processing capabilities. The Board will publish the notice in the 
Federal Register within 20 days of the application's filing with the 
Board. The draft notice shall be in the following form:

    STB Finance Docket No.---- (Sub-No. ----)
    Notice of Application for a land-use-exemption permit for a 
solid waste rail transfer facility.
    On (insert date application was filed with the Board) (name of 
applicant) filed with the Surface Transportation Board, 395 E 
Street, SW., Washington, DC 20423, an application for a land-use-
exemption permit for a solid waste rail transfer facility. The solid 
waste rail transfer station is located at (full address, or, if not 
available, provide city, state, and United States Postal Service ZIP 
code). The solid waste rail transfer facility is located on a line 
of railroad known as ----at milepost ----between (station name) at 
milepost ----and (station name) at milepost ----. The

[[Page 4724]]

application explains why applicant believes its request for a land-
use-exemption permit should be granted.
    (Include this paragraph for facilities not in existence on 
October 16, 2008). The facility is not proposed to be located on 
land within any unit of or land affiliated with the National Park 
System, the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild 
and Scenic Rivers System, a National Reserve, or a National 
Monument. The facility is not proposed to be located on lands 
referenced in The Highlands Conservation Act, Public Law No. 108-
421, for which a state has implemented a conservation management 
plan (or, The facility is consistent with the restrictions 
implemented by (state) under The Highlands Conservation Act, Pub. L. 
No. 108-421, placed on its proposed location). Any relevant 
documentation in the railroad's possession will be made available 
promptly to those requesting it.
    (For facilities already in existence on October 16, 2008, 
address the extent to which the facility is or is not located in any 
of these types of lands, and to the extent that it is so located 
address any relevant criteria, and so certify.)
    Any interested person may file with the Surface Transportation 
Board written comments concerning the application within 45 days of 
the filing of the application. Persons seeking information 
concerning the filing of comments should refer to 49 CFR 1155.25.
    Written comments should indicate the proceeding designation STB 
Finance Docket No. ---- (Sub-No. ----) and must be filed with the 
Secretary, Surface Transportation Board, 395 E Street, SW., 
Washington, DC 20423, no later than (insert the date 45 days after 
the date applicant intends to file its application). A copy of each 
written comment shall be served upon the representative of the 
applicant (insert name, address, and phone number). Except as 
otherwise set forth in 49 CFR 1155, each document filed with the 
Board must be served on all parties to the land-use-exemption permit 
proceeding. 49 CFR 1104.12(a).
    Persons seeking further information concerning land-use-
exemption-permit procedures may contact the Surface Transportation 
Board or refer to 49 U.S.C. 10908, 10909, and the full land-use-
exemption-permit regulations at 49 CFR 1155.
    A copy of the application is available for public inspection. 
The applicant shall furnish a copy of the application to any 
interested person proposing to file a comment, upon request.
    Questions concerning potential environmental issues may be 
directed to the Board's Section of Environmental Analysis. Where the 
preparation of environmental documentation under the National 
Environmental Policy Act is warranted, a Draft Environmental Impact 
Statement (EIS) (or more limited Environmental Assessment (EA), if 
appropriate) prepared by the Section of Environmental Analysis will 
be issued for public review and comment and served upon all parties 
of record and upon any agencies or other persons who commented 
during its preparation. The comments received will be addressed in 
the Final EIS or Post EA. The Board will take into account the 
results of the environmental review and any final recommended 
environmental mitigation in deciding what action to take on the 
application.

    (f) Verification. The original application shall be executed and 
verified in the form set forth below by an officer of the applicant 
having knowledge of the facts and matters relied upon.

    Verification
    State of ---- ss.
    County of ----
    ---- (Name of affiant) makes oath and says that (s)he is the --
-- (title of affiant) of the ---- (name of applicant) applicant 
herein; that (s)he has been authorized by the applicant (or as 
appropriate, a court) to verify and file with the Surface 
Transportation Board the foregoing application in STB Finance Docket 
No. ---- (Sub-No. ----); that (s)he has carefully examined all of 
the statements in the application as well as the exhibits attached 
thereto and made a part thereof; that (s)he has knowledge of the 
facts and matters relied upon in the application; and that all 
representations set forth therein are true and correct to the best 
of his/her knowledge, information, and belief. (Signature)
    Subscribed and sworn to before me ---- in and for the State and 
County above named, this ---- day of ----, 20----.
    My commission expires ----.

Sec.  1155.23  Additional requirements when filing after an 
unsatisfactory result from a State, local, or municipal authority 
affecting the siting of the facility.

    (a) When an applicant has previously sought permission from the 
applicable state, local, or municipal authority and received an 
unsatisfactory result, such as inordinate delay, affecting the siting 
of the facility, the applicant may petition the Board to accept an 
application for a land-use-exemption permit. The applicant shall 
address in its petition why applicant believes it can make the showing 
required in 49 CFR 1155.23(b). The petition shall be filed 
simultaneously with the land-use-exemption permit application.
    (b) Standard for review. The Board will not consider a land-use-
exemption-permit application regarding laws, regulations, or other 
requirements upon which the applicant has received an unsatisfactory 
result from a state, local, or municipal authority, unless the Board 
finds that the laws, regulations, or other requirements affect the 
siting of the facility, on their face or as applied, either
    (1) Unreasonably burden the interstate transportation of solid 
waste by railroad, or
    (2) Discriminate against the railroad transportation of solid waste 
and a solid waste rail transfer facility.


Sec.  1155.24  Filings and service of application.

    (a) The applicant shall tender with its application an affidavit 
attesting to its compliance with the notice requirements of 49 CFR 
1155.20. The affidavit shall include the dates of service, posting, and 
newspaper publication of the Notice of Intent.
    (b) When the application is filed with the Board, the applicant 
shall serve, by first-class mail, a copy on the Governor of the state 
where the facility is located, and the state, local, and/or municipal 
agency/ies that would have permitting or review authority of the solid 
waste rail transfer facility if there were no federal preemption. A 
copy of the certificate of service shall be filed with the Board at the 
same time.
    (c) The applicant shall promptly furnish by first class mail a copy 
of the application to any interested person proposing to file a written 
comment upon request. A copy of the certificate of service shall be 
filed with the Board at the same time.
    (d)(1) Upon the filing of a land-use-exemption-permit application, 
the Board will review the application and determine whether it conforms 
to all applicable regulations. If the application is substantially 
incomplete or its filing otherwise defective, the Board shall reject 
the application for stated reasons by order (which order will be 
administratively final) within 20 days from the date of filing of the 
application. If the Board does not reject the application, notice of 
the filing of the application shall be published in the Federal 
Register by the Board, through the Director of the Office of 
Proceedings, within 20 days of the filing of the application.
    (2) An applicant may seek waiver of specific regulations listed in 
subpart C of this part by filing a petition for waiver with the Board. 
A decision by the Director of the Office of Proceedings granting or 
denying a waiver petition will be issued within 30 days of the date the 
petition is filed. Appeals from the Director's decision will be decided 
by the entire Board. If waiver is not obtained prior to the filing of 
the application, the application may be subject to rejection.

[[Page 4725]]

Sec.  1155.25  Participation in application proceedings.

    (a) Public participation. (1) Comments. Interested persons may 
become parties to a land-use-exemption-permit proceeding by filing 
written comments with the Board within 45 days of the filing of the 
application. Comments should contain the following information, as 
appropriate:
    (i) Name, address, and organizational affiliation.
    (ii) A statement describing commenter's interest in the proceeding, 
including information concerning any organization or public interest it 
represents; and
    (iii) Specific reasons why commenter supports or opposes the 
application, taking into account the standards for the Board's review 
and consideration set forth in 49 U.S.C. 10909(c), (d) and 49 CFR part 
1155.
    (iv) If the applicant files under 49 CFR 1155.23, specific reasons 
why the commenter supports or opposes the Board considering the 
application.
    (v) Any rebuttal to the evidence and argument submitted by 
applicant.
    (vi) Any State, local, or municipal law, regulation, order, or 
other requirement affecting the siting of the facility not included in 
the application and any argument concerning its bearing on the merits 
of the application in terms of the standards for the Board's review and 
consideration set forth in 49 U.S.C. 10909(c), (d) and 49 CFR part 
1155.
    (b) Filing and service of written comments, along with evidence and 
argument, and rebuttals. (1) Written comments shall be filed with the 
Board (addressed to the Secretary, Surface Transportation Board, 395 E 
Street, SW., Washington, DC 20423) within 45 days of the filing with 
the Board of a land-use-exemption permit application. An original and 
10 copies of each written comment shall be filed with the Board. A copy 
of each written comment shall be served on applicant or its 
representative at the time of filing with the Board. Each filing shall 
contain a certificate of service.
    (2) Rebuttals to written comments shall be filed and served by 
applicants no later than 60 days after the filing of the application. 
An original and 10 copies of such replies shall be filed with the 
Board.


Sec.  1155.26  Transfer and termination of a land-use-exemption permit.

    (a) A land-use-exemption permit will be transferred to an acquiring 
rail carrier without the need for a new application for a land-use-
exemption permit if the rail line associated with the solid waste rail 
transfer facility is transferred to another rail carrier or to an 
entity formed to become a rail carrier pursuant to authority granted by 
the Board under 49 U.S.C. 10901, 10902, or 11323. When seeking Board 
authority under 49 U.S.C. 10901, 10902, or 11323, the applicant(s) 
should specifically advise the Board of the intended transfer.
    (b) When a carrier plans to cease using a facility as a solid waste 
rail transfer facility, or when a facility is transferred to any party 
in any manner other than that described in 49 CFR 1155.26(a), the 
entity that received the land-use-exemption permit must notify the 
Board in writing no later than 60 days prior to the proposed cessation 
or transfer. Upon receipt of that notice, the Board will publish notice 
in the Federal Register that the land-use-exemption permit will be 
terminated on the 60th day unless otherwise ordered by the Board.


Sec.  1155.27  Board determinations under 49 U.S.C. 10909.

    (a) Procedural schedule. (1) The following schedule shall govern 
the process for Board consideration and decisions in land-use-exemption 
permit application proceedings from the time the application is filed 
until the time of the Board's decision on the merits:

    Day 0--Application filed, including applicant's case in chief.
    Day 20--Due date for Notice of Application to be published in 
the Federal Register.
    Day 45--Due date for comments.
    Day 60--Due date for applicant's rebuttal.

    (2) A decision on the merits will be due 90 days after a full 
record is developed, including the appropriate environmental review, if 
any.
    (b) Standard for review. (1) The Board will issue a land-use-
exemption permit only if it determines that the facility at the 
existing or proposed location would not pose an unreasonable risk to 
public health, safety, or the environment. In deciding whether a solid 
waste rail transfer facility that is or proposed to be constructed or 
operated by or on behalf of a rail carrier poses an unreasonable risk 
to public health, safety, or the environment, the Board shall weigh the 
particular facility's potential benefits to and the adverse impacts on 
public health, public safety, the environment, interstate commerce, and 
transportation of solid waste by rail.
    (2) The Board will not grant a land-use-exemption permit for a 
solid waste rail transfer facility proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild and 
Scenic Rivers System, a National Reserve, or a National Monument.
    (3) The Board will not grant a land-use-exemption permit for a 
solid waste rail transfer facility proposed to be located on land 
within any unit of or land affiliated with lands referenced in The 
Highlands Conservation Act, Public Law No. 108-421, for which a state 
has implemented a conservation management plan, if operation of the 
facility would be inconsistent with restrictions placed on such land.
    (4) A land-use-exemption permit will not exempt a state requirement 
that a rail carrier comply with an environmental, public health, or 
public safety standard that falls under the traditional police powers 
of the state unless the requirement is unreasonably burdensome to 
interstate commerce or discriminates against rail carriers.
    (5) A land-use-exemption permit will only exempt state, local, or 
municipal laws, regulations, orders, or other requirements affecting 
the siting of the solid waste rail transfer facility.
    (c) Considerations. The Board will consider and give due weight to 
the following, as applicable:
    (1) The land-use, zoning, and siting regulations or solid waste 
planning requirements of the state or state subdivision in which the 
facility is or will be located that are applicable to solid waste 
transfer facilities, including those that are not owned or operated by 
or on behalf of a rail carrier;
    (2) The land-use, zoning, and siting regulations or solid waste 
planning requirements applicable to the property where the solid waste 
rail transfer facility is proposed to be located;
    (3) Regional transportation planning requirements developed 
pursuant to Federal and state law;
    (4) Regional solid waste disposal plans developed pursuant to 
Federal or state law;
    (5) Any Federal and State environmental protection laws or 
regulations applicable to the site;
    (6) Any unreasonable burdens imposed on the interstate 
transportation of solid waste by railroad, or the potential for 
discrimination against the railroad transportation of solid waste, a 
solid waste rail transfer facility, or a rail carrier that owns or 
operates such a facility; and
    (7) Any other relevant factors, as determined by the Board.
    (d) If the Board grants a land-use-exemption permit to a solid 
waste rail transfer facility, all State laws, regulations, orders, or 
other requirements affecting the siting of a facility are preempted 
with regard to

[[Page 4726]]

that facility. A Board issued land-use-exemption permit may require 
compliance with such State laws, regulations, orders, or other 
requirements.


Sec.  1155.28  Appellate procedures.

    General rule. Petitions to modify, amend, or revoke land-use-
exemption permits shall be decided in accordance with the Board's 
normal standard of review for petitions to reopen administratively 
final Board actions at 49 CFR 1115.4. The petition must demonstrate 
material error, new evidence, or substantially changed circumstances 
that warrant the requested action, and is subject to these additional 
conditions:
    (a) An entity that petitions for a modification or amendment 
requesting an expansion of federal preemption or the facility's 
operations or physical size is subject to the notice and application 
requirements in this subpart C. The language of the notifications shall 
be modified to note that the petition is for a modification or 
amendment.
    (b) The Board will approve or deny petitions to modify, amend, or 
revoke a land-use-exemption permit within 90 days after the full record 
for the petition is developed.

[FR Doc. E9-1304 Filed 1-26-09; 8:45 am]
BILLING CODE 4915-01-P